Poletti et al v. Syngenta AG et al

Filing 407

ORDER adopting in part, rejecting in part Special Master Stack's Report and Recommendation 368 . The Court adopts the Report and Recommendation to the extent it denies Conmy Feste's application for attorneys' fees. The Court rejects t he remaining awards contained in the Report and Recommendation and, instead, awards Clark/Phipps $38,228,166.67, or 49% of the Illinois pool; Demerath $780,166.67, or 1% of the pool; Eiland $2,340,500.00, or 3% of the po ol; Garrison $33,859,233.33, or 43.4% of the pool; and Onder $2,808,600.00, or 3.6% of the pool. To the extent the objections to the Report and Recommendation [375, 383] do not comport with this Order, they are OVERRULED. Signed by Chief Judge Nancy J. Rosenstengel on 8/19/19.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE SYNGENTA MASS TORT ACTIONS

This Document Relates to:
Tweet et al. v. Syngenta AG et al.,
No. 3:16-cv-00255-NJR; and
Poletti et al. v. Syngenta AG et al.,
No. 3:15-cv-01221-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on the Report and Recommendation of Special
Master Daniel J. Stack on Allocation of Attorney’s Fees (SDIL Case No. 15-1221, Doc. 368).
For the following reasons, the Report and Recommendation is adopted, in part, and
rejected, in part.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, corn farmers around the country filed suit against Syngenta for its
commercialization of genetically-modified corn seed products that contained the trait
MIR 162. In re: Syngenta AG MIR162 Corn Litig., No. 14-md-02591-JWL-JPO, MDL No.
2591 (D. Kan.) (hereinafter “Kansas Case”). The Syngenta litigation consisted of multiple
class actions, mass actions, and individual actions that were litigated primarily in the
United States District Court for the District of Kansas, Minnesota state court, and the
United States District Court for the Southern District of Illinois.

Page 1 of 24

In December 2014, the Multidistrict Litigation (“MDL”) Panel centralized the
Syngenta litigation in the United States District Court for the District of Kansas (Kansas
Case, Doc. 1). United States District Judge John W. Lungstrum has presided over the
Syngenta MDL since its inception.
In February 2018, after years of vigorous and complex litigation, the parties
executed an agreement that provided for a global settlement of $1.5 billion (See Kansas
Case, Docs. 3531 & 3532). Judge Lungstrum issued his final approval of the settlement in
December 2018 and allocated one-third of the gross settlement ($503,333,333.33) to
attorneys’ fees (See Kansas Case, Doc. 3849). To facilitate distribution of the fees, and in
conjunction with the settlement agreement, Judge Lungstrum created three common
benefit pools to compensate lawyers whose efforts produced a common benefit to all of
the plaintiffs: a Kansas MDL pool; a Minnesota state court pool; and an Illinois federal
court pool (Id. at Doc. 3882) (“the Fee Allocation Order”). Judge Lungstrum assigned
attorneys’ fees applicants to one of the three common benefit pools based primarily on
where they performed their work (Id. at Docs. 3816 & 3882). He then designated a
percentage of the fees to each pool, based on the pool’s contribution to the settlement (Id.
at Doc. 3882). Judge Lungstrum also created an individually retained private attorneys
(“IRPA”) pool.
In sum:
IRPA Pool (12%)
Kansas MDL Common Benefit Pool (49%)
Minnesota State Court Common Benefit Pool (23.5%)
Illinois Federal Court Common Benefit Pool (15.5%)
Total Attorney Fee Award (100%)
Page 2 of 24

$
$
$
$
$

60,400,000.00
246,633,333.33
118,283,333.33
78,016,666.67
503,333,333.33

Judge Lungstrum ordered the court within each pool’s jurisdiction to allocate the
fees, subject to the Kansas court’s approval. Judge Lungstrum made “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.”
He instructed,
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, . . . work completing a significant number of [plaintiff fact
sheets (“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 lesserexperienced 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.
ILLINOIS ALLOCATION
In December 2018, this Court appointed the Honorable Daniel J. Stack (Ret.) as
Special Master to issue a Report and Recommendation on the division of attorneys’ fees
from the Illinois pool (SDIL Case No. 15-cv-1221, Doc. 359). Special Master Stack issued
his Report and Recommendation on March 26, 2019 (Id. at Doc. 368); he recommends the
following allocations:
Page 3 of 24

Group

Fee Allocation in
Dollars

The Clark/Phipps Group (“Clark/Phipps”)
Clark, Love & Hutson, GP;
Meyers & Flowers LLC; and
Phipps Anderson Deacon LLP
Conmy Feste, Ltd. (“Conmy Feste”)
The Law Offices of A. Craig Eiland (“Eiland”)
The Law Offices of A. Craig Eiland
The Garrison Group (“Garrison”)
Heninger Garrison Davis, LLC;
Burke Harvey, LLC;
Crumley Roberts;
Hansen, Howell & Wilkie, PLLC;
Merkel & Cocke;
Law Offices of Wendell Hoskins;
Oldfield Myers Apke & Payne;
Sam C. Mitchell & Associates; and
Tapella & Eberspacher, LLC
O’Hanlon, Demerath & Castillo (“Demerath”)
Onder Law, LLC (“Onder”)

$61,633,166.67

Fee Allocation as
Percentage of
Illinois Federal
Court Pool
79.0%

$0
$3,120,666.67

0.0%
4.0%

$9,674,066.67

12.4%

$1,560,333.33
$2,028,433.33

2.0%
2.6%

Several applicants filed objections to Special Master Stack’s recommended
allocation, which obligates this Court to undertake a de novo review of the Report and
Recommendation. FED. R. CIV. P. 53(f). After its review, the Court may “adopt or affirm,
modify, wholly or partly reject or revere, or resubmit to the master with instructions.” Id.
COMMON BENEFIT PRINCIPLES
Under what has been coined the “American rule,” each litigant generally pays his
or her own attorney’s fees. Baker Botts L.L.P. v. ASARCO LLC, 135 S.Ct. 2158, 2164 (2015).
But in certain circumstances, the American rule results in unjust enrichment because
individuals may benefit from a successful party without bearing a fair share of the burden
of litigation. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). To remedy this problem,
courts recognize several judicially-created equitable doctrines, such as the common

Page 4 of 24

benefit doctrine, which is appropriately applied when “the plaintiff’s successful litigation
confers ‘a substantial benefit on the members of an ascertainable class, and where the
court’s jurisdiction over the subject matter of the suit makes possible an award that will
operate to spread the costs proportionately among them.’” Hall v. Cole, 412 U.S. 1, 5 (1973)
(quoting Mills v. Electric Auto-Lite, 396 U.S. 375, 393-94).
Courts generally use one of two methods in determining fee awards in common
benefit cases: (1) the percentage method, which awards a fee relative to the benefit that
counsel achieved for the class, and (2) the lodestar method, which awards a fee relative
to the hours and hourly billing rates. 5 NEWBERG ON CLASS ACTIONS § 15:66 (5th ed.). The
Tenth Circuit, under whose law the Fee Allocation Order falls, has explicitly held that
courts have discretion as to whether they use the percentage or lodestar approach. Id.
(citing Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988) (“We hold . . . that
the award of attorneys’ fees on a percentage basis in a common fund case is not per se an
abuse of discretion.”)).
SPECIAL MASTER STACK’S METHODOLOGY
Special Master Stack employed a percentage method as opposed to a lodestar
method and conducted both a quantitative and subjective analysis. He stated his
subjective analysis was based on his personal experience and observations of the
litigation. He also cited the Johnson factors, which are routinely applied to common
benefit cases. They are: (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service properly; (4) the
preclusion of other employment by the attorney due to acceptance of the case; (5) the
Page 5 of 24

customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and (12) awards
in similar cases. Johnson v. Georgia Hwy. Expr., Inc., 488 F.2d 714, 718-19 (5th Cir. 1974).
Quantitative Analysis
Special Master Stack’s quantitative analysis centered on four categories:
(1) common benefit hours; (2) common benefit expenses; (3) claimant data; and (4) client
acquisition expenses. He constructed a quantitative chart for each category that listed the
number of hours, common benefit expenses, claimants, or acquisition expenses each
applicant submitted, and assessed that number against the total submissions from the
applicants to arrive at a percentage. Then, Special Master Stack averaged the percentages
for each applicant group across the categories, and assigned each group a final
percentage.
Based on Special Master Stack’s calculations, Clark/Phipps submitted 110,337
non-attorney common benefit hours and 31,326 attorney common benefit hours, for a
total of 141,663 common benefit hours; Conmy Feste submitted 38 non-attorney hours
and 173 attorney hours, for a total of 211 hours; Eiland submitted 5,986 non-attorney
hours and 7,268 attorney hours, for a total of 13,254 hours; Garrison submitted 9,593 nonattorney hours and 10,024 attorney hours, for a total of 19,616 hours; Onder submitted
3,274 non-attorney hours and 3,911 attorney hours, for a total of 7,186 hours; and
Demerath submitted 3,446 non-attorney hours and 6,060 attorney hours, for a total of
Page 6 of 24

9,506 hours. In sum, when considering the non-attorney and attorney hours combined,
Clark/Phipps is responsible for 74% of all hours the Illinois applicants submitted; Conmy
Feste is responsible for 0.1%; Eiland is responsible for 6.9%; Garrison is responsible for
10.2%; Onder is responsible for 3.8%; and Demerath is responsible for 5.0%.
Special Master Stack also determined that Clark/Phipps’ expenses account for
87.8% of all expenses the Illinois applicants submitted; Eiland’s expenses account for 0.6%
of all expenses; Garrison’s expenses account for 10.1% of all expenses; Onder’s expenses
account for 0.5% of all expenses; and Demerath’s expenses account for 0.9% of all
expenses. 1
Further, Clark/Phipps’ claimants make up roughly 85.3% of the claimants
represented by the Illinois applicants; the Eiland Group’s claimants make up 5.1% of the
claimants; Garrison’s claimants make up 5.1% of the claimants; and Onder’s claimants
make up 5.8% of the claimants. 2
Finally, Special Master Stack calculated that Clark/Phipps’ client acquisition
expenses are 89.4% of all client acquisition expenses the Illinois applicants reported;
Eiland’s expenses are 2.3% of all expenses; Garrison’s expenses are 1.1% of all expenses;
Onder’s expenses are 3% of all expenses; and Demerath’s expenses are 4.1% of all
expenses. 3
After averaging the percentages from each category, Special Master Stack reported
that Clark/Phipps is responsible for 84.2% of the “contributions” to the Illinois litigation;
Conmy Feste submitted $629 in expenses, or 0.0% of all expenses submitted by the Illinois applicants.
Conmy Feste and Demerath’s claimants are listed as 0.0%.
3 Conmy Feste’s client acquisition expenses are listed as 0.0%.
1
2

Page 7 of 24

Conmy Feste is responsible for 0.0%; Eiland is responsible for 3.9%; Garrison is
responsible for 6.2%; Onder is responsible for 3.2%; and Demerath is responsible for 2.5%.
Subjective Analysis
Special Master Stack also conducted a subject analysis of each applicant. He
observed that Clark/Phipps was lead counsel in Tweet and Browning and “established
multiple litigation fronts that increased litigation pressure on Syngenta.” Special Master
Stack also stated, “Clark/Phipps further established novel litigation theories against
Syngenta for ethanol plants and biorefineries that ultimately resulted in the formation of
an ethanol producer settlement subclass. Similarly, Clark/Phipps’ vigorous prosecution
of claims on behalf of grain handling facilities also resulted in a subclass of claimants in
the Settlement.” The Report and Recommendation also highlighted Clayton Clark’s
involvement in the Plaintiff’s Settlement Negotiation Committee (“PSNC”), and the fact
that Syngenta required Clark/Phipps’ participation in the settlement as a precondition to
the agreement. Special Master Stack stated he gave extra consideration to Clark/Phipps’
quantitative analysis because:
[T]here is a significant difference in the percentage of [common benefit]
hours among all of these Groups. In the Clark Group, the ‘Attorney Hours’
are only 28% of the ‘Non’. Whereas all of the other groups/firms have more
‘Attorney Hours’ than ‘Non’. For this group, the Attorney hours are only
28% of the ‘Non.’ All others are the opposite with the Non-Attorney hours
being a percentage of the Attorney hours: Conmy is 22%; Eiland 82%;
Garrison 96%; Onder 54% and Demerath 57%.
But Special Master Stack noted that Clark/Phipps “did partake in some activities
that [he] found . . . to be less than helpful and actually, at times, potentially detrimental
to the process.” He concluded, “My assessment of [Clark/Phipps’] actual Common
Page 8 of 24

Benefit value is, therefore, increased by the Settlement Committee and Ethanol Plant
efforts while diminished somewhat by the others.” All-in-all, the Report and
Recommendation suggests awarding the Clark/Phipps Group $61,633,166.67, which is
79% of the Illinois pool.
In regard to Garrison, Special Master Stack noted that Garrison was lead counsel
in Poletti; obtained an important jurisdictional ruling that Clark/Phipps utilized; assisted
with discovery; and cooperatively participated in early settlement discussions. More
specifically, Special Master Stack pointed out that Garrison assisted in document review,
submitted more than 2,300 PFSs, and presented 44 farmers for depositions in nine
different states, culminating in the production of 350,000 pages of farmer documents to
Syngenta. Special Master Stack also gave “some increased valuation” for Garrison’s hours
related to arguments and filings. But he noted that Garrison was not appointed to the
PSNC:
Garrison cannot lay claim to, among other efforts, the significant value
created by Clark/Phipps in their settlement work. Nor did Garrison bring
to the table two of the four subclasses that were essential to ensuring finality
to this litigation. The large disparity in the number of claimants assertedly
represented by Clark/Phipps and Garrison . . . and the size of the threat
their cases posed to Syngenta further demonstrate the separation between
the two applicant firms.
Special Master Stack ultimately suggests awarding Garrison $9,674,066.67 in attorney
fees, which amounts to 12.4% of the Illinois pool.
In regard to Eiland, Special Master Stack notes Eiland filed 934 cases in Williamson
County, Illinois; assisted lead counsel there with document review and briefing efforts;
opted out approximately 1,200 clients from the litigation class certified in 2016; and filed
Page 9 of 24

nine separate lawsuits in Illinois state court. Eiland also developed analyses on the
application of the economic loss doctrine in Nebraska and Texas, as well as crossjurisdictional and intra-jurisdictional class action tolling law. Finally, Eiland worked with
regulatory and damages experts and assisted drafting motions and responses, and
contributed attorneys to review over 1.2 million pages of documents produced by
Syngenta. Special Master Stack suggests awarding Eiland $3,120,666.67, or 4% of the
Illinois pool.
As to Demerath, Special Master Stack credits the firms with work performed in
Nebraska and “play[ing] a role in this Court.” The Report and Recommendation suggests
awarding Demerath $1,560,333.33, or 2% of the Illinois pool.
Regarding Onder, the Report and Recommendation recognizes the firm’s
contribution to the creation of the consolidated actions in this Court; preparation and
service of PFSs on Syngenta; and work-up of bellwether trials, which included obtaining
and reviewing tens of thousands of documents and millions of pages of client documents.
Onder also traveled across the country for client depositions, coordinated with senior
litigation partners, crafted pretrial and trial strategies, and prepared substantive
materials, motions, and briefs. Special Master Stack suggests awarding Onder
$2,028,433.33, or 2.6% of the Illinois pool.
The Report and Recommendation suggests denying Conmy Feste’s application
because the group did not provide any argument or evidence of a common benefit
contribution.

Page 10 of 24

Finally, Special Master Stack reviewed certain fee sharing agreements and found
them to be fair and reasonable.
DISCUSSION
Garrison and Onder filed timely objections to the Report and Recommendation
(SDIL Case No. 15-1221, Docs. 375, 383), which elicited responses from Clark/Phipps
(SDIL Case No. 16-255, Doc. 315), Demerath (SDIL Case No. 15-1221, Doc. 396), Eiland (Id.
at Doc. 386), and Special Master Stack (Id. at Doc. 395). 4 The Court has reviewed the
applicants’ briefing, Judge Lungstrum’s orders, the documents submitted to Special
Master Stack, and all other relevant materials. After carefully scrutinizing the record, the
Court cannot adopt the Report and Recommendation in its entirety, due to several
structural and procedural flaws.
First, the quantitative analysis considers client acquisition costs, which Judge
Lungstrum specifically instructed the courts not to consider when allocating fees (Kansas
Case, Doc. 3882) (“[T]he courts do not consider work performed in recruiting clients to

Special Master Stack understandably defends his novel approach, but strangely, the Court also received
a declaration from retired United States District Judge David R. Herndon in support of the Report and
Recommendation. Judge Herndon presided over the Syngenta litigation in this Court prior to his retirement
and appointed Special Master Stack for fee allocation. Judge Herndon’s response adds little substance to
the issues at hand and, instead, spends roughly ten pages defending the quantitative analysis and
mitigating Garrison’s contributions to this litigation. Regardless of the intent, the Court finds the response
from Special Master Stack unnecessary and the response from Judge Herndon highly inappropriate, given
their purportedly neutral roles in these proceedings. Even if the Court gave the response any weight, which
it does not, Judge Herndon’s unsolicited opinion is not enough to support a totally unprecedented
methodology that runs contrary to common benefit principles and Judge Lungstrum’s Fee Allocation
Order.
4

Attorney Christopher Cueto also filed an objection to the Report and Recommendation (SDIL Case No. 151221, Doc. 377), in which he objects to the entry of a final order regarding fee allocation in this Court before
the resolution of a fee dispute involving Clark/Phipps. The Court overrules Mr. Cueto’s objection
regarding the entry of this Order, but notes that this Order is not dispositive of any issues relating to the
fee dispute between Mr. Cueto and Clark/Phipps.

Page 11 of 24

have inured to the common benefit of the settlement class”)). The quantitative analysis
also puts undue weight on claimant numbers and expenses. These factors are not per se
improper in the common benefit analysis because they may indicate how invested the
firms were in the litigation and, similarly, the degree of risk they carried. See In re Initial
Public Offering Sec. Litig., No. 21 MC 92 (SAS), 2011 WL 2732563 (S.D. N.Y. July 8, 2011);
(Kansas Case, Doc. 4079). Expenses and claimant numbers do not accurately reflect the
work performed on behalf of clients or indicate whether that work benefitted the class.
See In re Vioxx Products Liability Litig., 760 F. Supp. 2d 640, 643 n.4 (E.D. La. Oct. 19, 2010)
(“[H]aving a large number of cases in the MDL often indicates skill at advertising, but
does not guarantee the best lawyering . . .”). Because the Report and Recommendation
placed claimant numbers, expenses, and client acquisition costs at an equal footing with
the hours actually expended in pursuit of the plaintiffs’ cause, the methodology does not
accurately display the firms’ common benefit value. The methodology also carries the
risk of blindly and disproportionately rewarding attorneys for marketing efforts, rather
than work performed advocating for the benefit of the plaintiffs. Notably, the Kansas
court has implemented a separate process for the reimbursement of expenses (See Kansas
Case, Docs. 3816 & 3882).
Also, the quantitative analysis does not fairly evaluate the common benefit hours
the applicants reported. The Report and Recommendation mistakenly attributed an
additional 12,913 hours to Clark/Phipps and further erred by accepting Clark/Phipps’
time at face value. Clark/Phipps reported just over 128,000 hours of common benefit
work, while the 49 Kansas MDL firms combined submitted 142,823.5 hours (Kansas Case,
Page 12 of 24

Doc. 3641, Ex. 1). Moreover, a large portion of Clark/Phipps’ time is logged by
anonymous

employees,

and

their

time

summaries

are

not

supported

by

contemporaneous time records. When assessing common benefit work, district courts do
not need to review actual billing records, and are free to rely on time summaries. In re
Rite Aid Corp. Sec. Litig., 396 F.3d 294, 306-07 (3d Cir. 2005); see also In re Vioxx, 760 F. Supp.
2d at 659. But in this instance, the Report and Recommendation erred by not scrutinizing
Clark/Phipps’ time at all, given the tremendous discrepancy between the number of
hours Clark/Phipps submitted and the number of hours the other firms across this
litigation submitted. The Court understands that many firms’ representation of their
clients began on a contingency basis, which may result in the unavailability of detailed
time summaries. But this is even more reason to carefully inspect the time submissions.
Also, Judge Lungstrum instructed, “[A]lthough 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” (Kansas Case, Doc. 3882). The Fee Allocation Order cautioned the
courts to be mindful that some work could have been completed by lesser-experienced
attorneys, paralegals, or other staff (Id.). For example, according to Judge Lungstrum,
time spent shepherding clients through the claims process and substantial post-retention
communications with clients are not especially valuable to the common benefit of the
plaintiffs (See Id.). Despite these instructions, the Report and Recommendation does not
meaningfully differentiate between the types of work underlying the common benefit
hours or who performed the work. For instance, although Clark/Phipps submitted 74%
Page 13 of 24

of all hours submitted for compensation from the Illinois pool, over two-thirds of those
hours are attributable to miscellaneous non-attorneys and include a staggering 22,499.80
hours of “assisting clients in perfecting claims in settlement” and 48,221.10 hours of “presettlement communication with clients.” Ultimately, the Report and Recommendation
fails to carefully evaluate the benefit of the work behind the hours, which dilutes the
contributions of some applicants while significantly inflating the value of others.
The Report and Recommendation’s subjective analysis is also incongruent, in
some respects, with Judge Lungstrum’s orders. For instance, the Report and
Recommendation justified awarding Clark/Phipps nearly 80% of the Illinois pool largely
for the firm’s work developing cases on behalf of ethanol plaintiffs. The Report spends
much time praising Clark/Phipps for “establish[ing] novel litigation theories against
Syngenta for ethanol plants and biorefineries” (SDIL Case No. 15-cv-1221, Doc. 368). But
Judge Lungstrum explained that Clark/Phipps’ work on this front was actually harmful
to the Illinois plaintiffs: ”[M]uch of the work by Clark/Phipps on behalf of ethanol plants
and against other members of the grain trade ultimately proved unsuccessful, which
defeats bolstered Syngenta’s position and thus did not contribute to achievement of the
settlement” (Kansas Case, Doc. 3882). Despite Judge Lungstrum’s comments, the Report
and Recommendation increases Clark/Phipps’ common benefit value for their work on
behalf of ethanol plaintiffs.
For all of these reasons, the Court cannot adopt the Report and Recommendation
in its entirety. The cornerstone of the common benefit analysis is whether a lawyer’s work
benefited the entire class. Work that benefits a small group of claimants or is too
Page 14 of 24

tenuously related to the advancement of the claimants should not be reimbursed. See In
re Sulzer Hip Prosthesis and Knee Prosthesis Liability Litig., 268 F.Supp.2d 907 (N.D. Ohio
June 12, 2003). The Report and Recommendation’s analysis makes tenuous presumptions
about the applicants’ contributions based on expenses and claimant numbers, and
generally fails to seriously consider whether work actually inured to the benefit of the
plaintiffs.
Although ideally the Court would conduct its own scrutiny of the time records, it
simply does not have the resources to scour almost 200,000 hours of time entries. And, as
already noted, some applicants failed to provide the Court with detailed records.
Accordingly, the Court will review the hours the applicants submitted and ensure they
comport with the Fee Allocation Order, common benefit principles, Johnson factors, and
posture of this litigation. Then, the Court will adjust the suggested allocations
accordingly.
Allocation
1. Clark/Phipps
Description
Complaint Drafting
Dispositive Motion Briefing and Argument
Class Certification Motion Briefing and Argument
Plaintiff Fact Sheet Preparation and Review
Paper Discovery (Syngenta and Third Parties)
Paper Discovery Against Plaintiffs
Discovery Motion Practice and Communications with Adverse Parties
Fact Depositions (Syngenta and Third Parties)
Defend Fact Depositions of Plaintiffs
Discovery File Management
Plaintiffs' Expert Witness Work
Page 15 of 24

Attorney
Hours
7186.3
7497.7
1150.8
673.9
1232.6
454.2
1417.3
33
0
2333.3
1566.2

Non-Attorney
Hours
2506.6
28.9
0
4539.2
0.2
0
1.4
0
0
18497.7
273.1

Description
Defendant Expert Witness Work
Other Pretrial Motion Practice
Trial Briefing and Jury Instructions
Post-Trial Briefing
Pre-Settlement Communication with Clients
Settlement Negotiations
Assisting Clients in Perfecting Claims
Preparation of Fee Petition
Administrative Work as Court-Appointed Leadership
Other
Total

Attorney
Hours
107.3
1080.9
10
405.1
822.3
1671.2
915.5
635.4
197.2
1936.2
31326.4

Non-Attorney
Hours
0
13.6
0
0
47398.80
23.7
21584.30
6.4
0.00
2549.40
97423.3

Clark/Phipps claims 128,749.7 hours of common benefit work, consisting of
31,326.4 attorney hours and 97,423.3 non-attorney hours. Pursuant to the Fee Allocation
Order, the Court gives little weight to the 22,499.8 hours of assisting clients in perfecting
claims and 5,213.1 hours of PFS work. Moreover, the 97,423.3 non-attorney hours (over
two-thirds of Clark/Phipps’ time) are given significantly less weight than the 31,326.4
attorney hours. Although the Court also gives less weight to Clark/Phipps’ 48,221.1
hours of pre-settlement communications with clients, it recognizes that some portion of
this time was crucial to the settlement agreement—Syngenta required Clark/Phipps’
participation in the settlement as a pre-condition to executing the agreement. Thus,
Clark/Phipps spent necessary hours securing the participation of their (roughly) 18,000
claimants, which adds to their common benefit value. Finally, because Clark/Phipps’
time appears to be grossly excessive in comparison to all the other firms involved in this
litigation, the Court gives their time less weight, overall. See In re Public Offering Sec. Litig.,
2011 WL 2732563, at *4 (entirely eliminating or reducing “questionable” hours); In re

Page 16 of 24

Sulzer Hip Prosthesis and Knee Prosthesis Liability Litig., 268 F.Supp.2d at 925 (disallowing
fees for time that was “grossly excessive on its face”).
When considering Clark/Phipps’ contributions, the Court acknowledges Clayton
Clark’s appointment to the PNSC and the Illinois settlement committee; these groups
were invaluable in reaching the global settlement. Clark/Phipps has demonstrated a high
level of commitment to this litigation and has expended considerable time and resources
in pursuing a resolution. As Judge Lungstrum noted, Clark/Phipps filed hundreds of
cases in various courts and played an important role in helping to negotiate the settlement
(Kansas Case, Doc. 3882). Special Master Reisman (appointed in the Kansas MDL) also
pointed out that Clark/Phipps initiated 456 discovery requests on Syngenta and, along
with Garrison, worked with a team of expert economists to develop damages models
against Syngenta (Kansas Case, Doc. 3816). Also, Clark/Phipps’ efforts on behalf of grain
handling facilities resulted in the creation of one of the four settlement subclasses, which
adds to their common benefit value.
But the Court also must factor in the less-than-favorable results Clark/Phipps
obtained. Clark/Phipps expended a substantial amount of effort prosecuting cases on
behalf of ethanol plants and biorefineries. Although Clark/Phipps developed novel legal
theories that resulted in an ethanol settlement subclasses, this front was largely
unsuccessful and bolstered Syngenta’s position. In fact, Judge Lungstrum reduced the fee
allocation to the Illinois pool because of Clark/Phipps’ ethanol losses (Kansas Case,
Doc. 3882). Thus, the time and resources Clark/Phipps expended prosecuting the
unavailing ethanol cases did not confer a common benefit on the plaintiffs as a whole.
Page 17 of 24

Also, Clark/Phipps’ work in developing cases against grain handlers created
obstacles for coordination between the Illinois litigation and the Kansas MDL (See SDIL
Case No. 16-225, Doc. 58). Clark/Phipps was appointed lead counsel in Tweet, a case in
this Court in which plaintiffs asserted claims against grain handlers. As a result, Tweet
created tension with the MDL leadership’s position that grain handlers were not liable,
and thus impeded discovery coordination. While Clark/Phipps points out that it created
more work for Syngenta by not coordinating discovery, the claims against the grain
handlers were largely dismissed at the Rule 12(b)(6) stage (SDIL Case No. 16-cv-255, Doc.
185) or voluntarily dismissed shortly thereafter (Id. at Doc. 199). Thus, Clark/Phipps’
time spent in furtherance of claims against grain handlers cannot be considered common
benefit hours.
In light of the above, the Report and Recommendation’s suggested allocation of
should be reduced to account for the non-attorney hours; time spent communicating with
clients and guiding them through the claims process; the losing ethanol litigation; the
prosecution of claims against grain handling facilities; and the lack of contemporaneous
time sheets to support their summaries. In conclusion, the Court awards Clark/Phipps
$38,228,166.67, or 49% of the Illinois pool.
2. Conmy Feste

Description
Pre-settlement Communication with Clients
Assisting Clients in Perfecting Claims in Settlement
Other
Total

Page 18 of 24

Attorney
Hours
76.8
6.0
89.75
172.55

Non-Attorney
Hours
22.3
4.4
11.6
38.3

Conmy Feste’s hours consist almost entirely of pre-settlement communication with
clients and assisting clients in perfecting claims. These hours have little common benefit
value, and Conmy Feste did not object to the Report and Recommendation’s denial of its
fee application. Accordingly, the Court adopts Special Master Stack’s recommendation
and denies Conmy Feste’s application.
3. Demerath

Description
Complaint Drafting
Pre-settlement Communication with Clients
Assisting Clients in Perfecting Claims
Preparation of Fee Petition
Total

Attorney Hours
321.5
5375.5
345
18
6060

Non-Attorney
Hours
91.5
3237
105
12
3445.5

Demerath claims 9,505.5 hours of common benefit work, consisting of 6,060 attorney
hours and 3,445.5 non-attorney hours. Again, the Court affords significantly less weight
to the non-attorney hours and little weight to hours recorded as pre-settlement
communication with clients and assisting clients in perfecting claims. As to Demerath’s
contributions, Demerath was responsible for filing some of the first cases in Nebraska
before exclusively assisting Clark/Phipps. Demerath’s background in farming was
clearly beneficial for client acquisition and retention, but it did not benefit the class at
large. Thus, the Court reduces Special Master Stack’s award to $780,166.67, or 1% of the
Illinois pool.

Page 19 of 24

4. Eiland

Description
Complaint Drafting
Class Certification Motion Briefing and Argument
Plaintiff Fact Sheet Preparation and Review
Paper Discovery
Plaintiffs' Expert Witness Work
Other Pretrial Motion Practice
Pre-settlement Communication with Clients
Assisting Clients in Perfecting Claims
Preparation of Fee Petition
Excluding Clients from Class Action
Illinois Coordinating Counsel Work
Hearings and Related Travel
Administrative Work
Total

Attorney
Hours
88
30
815
320
26
4
4015
330
150
500
650
340
0
7268

Non-Attorney
Hours
0
0
0
0
0
0
0
330
156
0
0
0
5500
5986

Eiland claims 13,254 hours of common benefit work, consisting of 7,268 attorney
hours and 5,986 non-attorney hours. Again, the Court affords significantly less weight to
the non-attorney hours and little weight to the hours recorded as pre-settlement
communication with clients (over half of Eiland’s estimated attorney hours) and PFS
work-related hours. As to their contributions, the Court reiterates Special Master Stack’s
acknowledgement that Eiland filed many cases in Williamson County, Illinois; assisted
with document review and briefing; opted out over one thousand clients from the
litigation class certified in 2016; worked with experts; and conducted other discovery. But
because the majority of Eiland’s hours consist of PFS work, communication with clients,
assisting clients with claims, and administrative work, the Court reduces Eiland’s award
to $2,340,500, or 3% of the Illinois pool.

Page 20 of 24

5. Garrison

Description
Complaint Drafting
Dispositive Motion Briefing and Argument
Plaintiff Fact Sheet Preparation
Paper Discovery (Syngenta and Third Parties)
Paper Discovery Against Plaintiffs
Discovery Motion Practice and Communication with
Adverse Parties
Fact Depositions (Syngenta and Third Parties)
Defend Fact Depositions (of Plaintiffs)
Discovery File Management
Plaintiffs' Expert Witness Work
Defendant Expert Witness Work
Pre-Settlement Communication with Clients
Assisting Clients in Perfecting Claims
Settlement Negotiations
Preparation of Fee Petition
Access, Archive, Track & Review Pleadings, Motions, etc.
Administrative Work as Court-Appointed Leadership
Other
Total

Attorney
Hours
615
473.7
1538.13
1282.5
1170.69

Non-Attorney
Hours
307.8
61.1
5839.75
890.5
71.7

432.3
1074.3
823
97.3
116.9
1.7
506.49
22.5
314.5
134
9.3
86.3
1325.1
10023.71

0
5.5
5.8
70.9
0
0
1541.25
110
0
19.5
1.4
0
667.5
9592.7

Garrison submitted 19,616.41 hours, consisting of 10,023.71 attorney hours and
9592.7 non-attorney hours. Again, the Court gives little weight to hours for pre-settlement
communication with clients, PFS work, and assisting clients in perfecting claims, and
affords significantly less weight to the non-attorney hours compared to the attorney
hours. Notably, Garrison provided detailed time sheets describing the attorney or
personnel who completed a task, the nature of the task, the date the task was performed,
and the amount of time spent on each task (SDIL Case No. 15-1221, Doc. 349).

Page 21 of 24

As to Garrison’s contributions, the group was at the forefront of the Illinois
Syngenta litigation. They were appointed lead counsel in Poletti, where they secured
important rulings on personal jurisdiction and the economic loss doctrine. Garrison’s
success benefitted all Illinois plaintiffs—state and federal—as well as plaintiffs in other
state courts across the country. Furthermore, Garrison was engaged in a joint-prosecution
agreement with the Kansas MDL leadership and assisted them in document review.
Additionally, Garrison presented 44 farmers for deposition, produced approximately
350,000 pages of farmer documents, and were engaged in early settlement discussions.
Finally, Garrison pursued lines of questioning at depositions that were used at the Kansas
class trial where the jury returned a plaintiffs’ verdict (Kansas Case, Docs. 3816 & 3312).
In consideration of all the relevant factors, the Court awards Garrison $33,859,233.33, or
43.4% of the Illinois pool.
6. Onder

Description
Complaint Drafting
Plaintiff Fact Sheet Preparation and Review
Paper Discovery Against Plaintiffs
Discovery Motion Practice and Communication with Adverse Parties
Defend Fact Depositions
Discovery File Management
Pre-Settlement Communication with Clients
Assisting Clients in Perfecting Claims
Preparation of Fee Petition
Administrative Management
Access, Archive, Track & Review Pleadings, Motions, etc.
Conference Calls with Co-Counsels
Total

Page 22 of 24

Attorney Non-Attorney
Hours
Hours
365.8
92.3
570.1
310.7
245.4
97.5
15
12
230.7
0
67.8
65
740.1
952.9
113.1
202.6
371.4
1106.7
630.8
267
538.03
167.7
23.1
0
3911.33
3274.4

Onder submitted 7,185.73 hours, consisting of 3,911.33 attorney hours and 3,274.4
non-attorney hours. The Court gives little weight to the hours recorded as pre-settlement
communication with clients, PFS preparation and review, and assisting clients in
perfecting claims. Also, the Court affords significantly less weight to the non-attorney
hours compared to the attorney hours.
As to their contributions, Onder worked closely with Garrison and contributed to
the creation of the Illinois front in this Court. Onder also played an important role in
coordinating with the MDL leadership to participate in depositions. Further, Onder took
part in depositions for its corn producer clients, developed pre-trial and trial strategies,
and prepared substantive materials, motions, and briefs, which included arguments on
the economic loss doctrine and CAFA jurisdictional issues. Onder’s work proved
successful in avoiding transfer of cases to the MDL; clearly this success cemented the
third front Syngenta could not ignore.
Furthermore, Onder, along with Garrison, contributed to developing 48 claims for
potential bellwether trials in Poletti. 5 Onder also obtained and reviewed countless
documents from Syngenta and its subsidiaries regarding matters such as Syngenta’s
sales, marketing, purchases, scientific GMO data, and agricultural market data.
Therefore, the Court awards Onder $2,808,600.00, or 3.6% of the Illinois pool.

In contrast, bellwether work-up never occurred in Tweet, the parallel litigation to Poletti in the Southern
District of Illinois.

5

Page 23 of 24

CONCLUSION
In conclusion, the Court ADOPTS in part and REJECTS in part the Report and
Recommendation regarding fee allocations (SDIL Case No. 15-1221, Doc. 368). The Court
adopts the Report and Recommendation to the extent it denies Conmy Feste’s application
for attorneys’ fees. The Court rejects the remaining awards contained in the Report and
Recommendation and, instead, awards Clark/Phipps $38,228,166.67, or 49% of the
Illinois pool; Demerath $780,166.67, or 1% of the pool; Eiland $2,340,500.00, or 3% of the
pool; Garrison $33,859,233.33, or 43.4% of the pool; and Onder $2,808,600.00, or 3.6% of
the pool.
This Order is not dispositive of any issues related to the fee dispute at issue in
Christopher Cueto’s objection to the Report and Recommendation (SDIL Case No. 151221, Doc. 377), and the Court retains its jurisdiction to resolve fee disputes.
To the extent the objections to the Report and Recommendation do not comport
with this Order, they are OVERRULED.
IT IS SO ORDERED.
DATED: August 19, 2019
___________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

Page 24 of 24