Lawyers from 15 law firms, including Texas plaintiffs attorney Mikal Watts, tussled in court Monday over who should get what from a $503 million fee award in the GMO corn settlement with Syngenta.
U.S. District Judge John Lungstrum of the District of Kansas, who approved the $1.5 billion class action settlement in an order earlier this month, heard objections to a special master’s report and recommendation that allocated fees to about 400 law firms. The settlement, approved in the multidistrict litigation in Kansas, resolved lawsuits alleging that Syngenta sold genetically modified corn seed that China refused to import, causing about 600,000 farmers and other producers to lose billions of dollars.
The dispute mirrors similar fee fights that have erupted in mass torts between plaintiffs attorneys appointed to represent the class and those who have brought individual suits on behalf of their clients. But the Syngenta litigation also progressed in three separate venues, with U.S. District Judge David Herndon of the Southern District of Illinois and Minnesota Fourth Judicial District Judge Laurie Miller making appearances at Monday’s hearing.
Lawyers from all three venues addressed last month’s report by special master Ellen Reisman of Reisman Karron Greene in Washington, D.C. But the biggest criticism came from firms with individual farmer clients whose contingency fees would be capped at 10 percent under the report’s recommendation.
“This case would not have settled for nearly as much money if these 300 to 400 lawyers like me weren’t on the line helping these farmers fill out their plaintiffs’ fact sheets and participating fully in this litigation,” said Dana Kirk of Kirk Law Firm in Houston.
Reisman’s report recommended 50 percent of the fees should go to 95 law firms in the multidistrict litigation in Kansas. Another 24 percent, or about $120.8 million, should go to lawyers with Minnesota cases, 16 percent to those in Illinois, and 10 percent to remaining attorneys with individual clients.
In court, Reisman defended her report.
“I’m not denigrating the contributions of either Minnesota or Illinois,” she said. “It was the weight of this litigation that brought Syngenta to its knees to settle. But you have to look at where the real threat, where the real work was, and it was the Kansas leadership.”
Two lawyers serving as co-lead counsel in the multidistrict litigation in Kansas also defended the report’s findings, even though they did not agree with Reisman on everything.
“This is a very difficult process,” said Patrick Stueve of Kansas City, Missouri-based Stueve Siegel Hanson. “We think it is as good as you can do under these very difficult circumstances.”
Lawyers with individual farmer clients feared the report’s allocation of $50 million for them failed to acknowledge the work they did. They said that, unlike other mass torts, handling plaintiffs’ fact sheets in the Syngenta case was a lot of work—made more difficult by the skeptical nature of the farmers.
“Farmers don’t just sign up on a TV ad,” said Paul Byrd of the Paul Byrd Law Firm in Little Rock, Arkansas. “They have to know who they’re dealing with.”
A key voice in that camp was Watts, of Watts Guerra in San Antonio, who represented 57,000 farmers with individual contingency fee contracts. Reisman, in her report, shot down his initial request for $150 million of the fees. Watts objected, calling her conclusions “both legally flawed and factually deficient,” according to a Dec. 5 court filing. Lead plaintiffs attorneys in Kansas, in their own court filing Dec. 14, said Watts Guerra stood to earn $52 million, plus $12.8 million in expenses, under the report’s allocation.
The Syngenta multidistrict litigation, created in 2014, involved subclasses of farmers in eight states planned for trials. Last year, a federal jury awarded $217.7 million to a class of Kansas farmers. Another trial, on behalf of a class of Minnesota farmers, was ongoing when both sides struck a deal.
Watts, whose clients filed cases primarily in Minnesota state court, told the judges Monday that her report failed to account for his large number of clients and work in the Minnesota trial that was wrapping up when Syngenta agreed to settle. He continued to insist she recognize a 2015 joint prosecution agreement he made with lead counsel in the multidistrict litigation—an arrangement that Reisman found in her report to be “irrelevant.”
“It is the contract the parties had between each other and operated under for three years,” Watts said in court. “Why tear it up? Why make it go away?”
Some of the other lawyers who objected in court were among the 330 who worked with Watts in representing clients.
Others raised concerns about fees to lawyers with Illinois cases, which they claimed should get much less than the report allocated.
Lawyers defending the Illinois cases pointed to the active role in settlement negotiations played by Herndon, known for his experience in class actions and mass torts—an argument that elicited several jokes about whether the judge should apply for fees.
“At some point along the way, I really began to appreciate your commitment to getting this done,” said Clayton Clark, of Houston’s Clark, Love & Hutson, referring to Herndon. “There were so many opportunities for this to fail.”