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In re Syngenta AG MIR162 Corn Litigation

United States District Court, D. Kansas

July 19, 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. 15-9900 Kellogg, et al.,
v.
Watts Guerra, LLP, et al., No. 18-2408 MDL No. 2591

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         This matter arising from multi-district litigation (MDL) comes before the Court upon the report and recommendation (R&R) of the special master concerning awards of expenses (Doc. # 4145). As more fully set forth below, the Court rules on objections to the report and recommendation as follows: the objection of Meshbesher & Spence, Ltd. (Doc. # 4170) is sustained; and the objections of Paul Byrd Law Firm, PLLC (Doc. ## 4172, 4174) and Shields Law Group, LLC (Doc. # 4175) are overruled. The Court adopts the special master's recommendations as set forth her R&R and her response to the objections, and the Court awards expenses to attorneys as set forth in the special master's Amended Exhibit E (Doc. # 4189-1), which is incorporated into this order as Attachment A.

         I. Background

         On April 10, 2018, the Court granted preliminary approval of a settlement agreement resolving claims against Syngenta[1] and certified a settlement class. See In re Syngenta AG MIR 162 Corn Litig., 2018 WL 1726345 (D. Kan. Apr. 10, 2018) (Lungstrum, J.). On that date, the Court also set a deadline for any motion seeking attorney fees or expenses from the settlement fund. The Court subsequently appointed a special master, who issued a Report and Recommendation on November 21, 2018, concerning awards of attorney fees and expenses.

         By Memorandum and Order of December 7, 2018, the Court granted final approval of the settlement. 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 the special master's report and recommendation concerning the initial allocation of attorney fees, including the method of allocating fees from four pools. See In re Syngenta AG MIR 162 Corn Litig., 2018 WL 6839380 (D. Kan. Dec. 31, 2018) (Lungstrum, J.). The Court declined to adopt the master's recommendation that total expenses be approved up to a maximum amount represented by the total of the initial expense applications. See Id. at *15, n.12. The Court did adopt other recommendations concerning expenses (to which no attorney had objected) as follows:

First, the Court shall award reimbursement of reasonable expenses from the settlement fund, separate from the one-third award of attorney fees.
Second, the Court orders that the standards and limitations contained at pages 12 through 14 of the Court's CBO [Common Benefit Order] of July 27, 2015, shall apply here and govern the Court's determination of reasonable expenses that may be reimbursed from the settlement fund. Those standards set limits for travel expenses (airfare, hotel, meals, cash outlays, car rental, mileage) and other expenses (telephone charges, shipping, postage, fax and photocopy, computer research). Such limitations are typically applied by courts and by business clients, and because they were announced in the CBO at an early stage of the litigation, it is appropriate that they govern here. The Court notes (as does the special master) that items not included in the CBO (such as advertising and expenses for recruiting or entertainment) generally constitute firm overhead, and items properly considered overhead will not be reimbursed as reasonable expenses.
Third, the special master shall perform an additional review of expenses, and she may require the submission by applicants of supplemental documentation (particularly with respect to miscellaneous expenses, air travel, and meal expenses). Upon completion of that review, the master shall file a further report and recommendation concerning awards for reimbursement of expenses from the settlement fund.
Fourth, the Court intends that attorneys representing individual clients on a contingent fee basis shall recover expenses only as awarded by the Court. Thus, such attorneys shall be prohibited from collecting any other expenses from their clients related to this representation under any contingent fee contract. As with fees, this will ensure that awards are reasonable and that the settlement class members recover from the settlement fund on equal terms (whether or not they retained counsel). In light of this prohibition, the Court deems it appropriate to reopen the period for applications for reimbursement of reasonable expenses. The same procedure and deadline set out above with respect to new IRPA pool fee applications shall also apply with respect to new requests for reimbursement of expenses. See supra Part II.C.8.
Fifth and finally, any awards of reasonable expenses from the settlement fund shall be made by this Court, as presumed by the special master in the R&R. It is reasonable for a single court to award all expenses, so that the standards may be applied consistently to all expense applications, and no attorney has argued to the contrary.

See Id. at *15 (footnote omitted).

         On April 19, 2019, after a long process in which the special master solicited and reviewed the original and additional expense applications and supporting material and followed up with applicants as necessary, the special master issued her report and recommendation, in which the master has recommended specific awards of expenses to attorneys and attorney groups. Objections were received from three firms: Meshbesher & Spence, Ltd. (“Meshbesher”); Paul Byrd Law Firm, PLLC (“PBLF”); and Shields Law Group, LLC (“SLG”).

         II. Approval and Adoption of Award ...


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