Tillery files pleadings under seal in federal class action over atrazine

Steve Korris Dec. 22, 2010, 8:13am



EAST ST. LOUIS – Attorney Stephen Tillery of St. Louis sealed his reasons for subjecting Swiss holding company Syngenta AG to American justice, and he blamed the Swiss for his secrecy.

Tillery, pursuing a water contamination claim for cities in four states, told U.S. District Judge Phil Gilbert on Dec. 21 that he sealed his briefs to comply with a confidentiality order.

Gilbert had directed Tillery to explain why he sealed them, and Tillery answered that Syngenta AG should explain.

"Plaintiffs do not oppose having their pleadings unsealed, and so
should not have to make the argument to the contrary on defendants' behalf," he wrote.

Tillery seeks to hold Syngenta AG responsible for actions of Syngenta Crop Protection Inc., a manufacturer of weed killer atrazine in North Carolina.

Federal regulators regard atrazine as safe in water supplies at concentrations below three parts per billion, but Tillery proposes to declare it dangerous at any level.

In the suit before Gilbert and suits against many companies before Madison County Circuit Judge Barbara Crowder, he seeks compensation for past water treatment, funds for future treatment, and other relief.

He represents cities in Illinois, Missouri, Kansas and Ohio.

He sued Syngenta Crop Protection and Syngenta AG in federal court in March.

In May, Syngenta Crop Protection moved to dismiss for failure to state a claim, and Syngenta AG moved to dismiss for lack of jurisdiction.

Kurtis Reeg of St. Louis wrote that Syngenta AG has no employees and doesn't manufacture, design or sell any product.

Reeg wrote that it primarily owns shares in agricultural and chemical companies.

He wrote that there are no overlapping members on the boards of Syngenta AG and Syngenta Crop Protection.

He wrote that while two members of Syngenta AG's executive committee serve on the board of Syngenta Crop Protection, they comprise a minority of the board.

That sounded like a confession of control to Tillery associate Patricia Murphy of Energy, wife of U.S. District Judge Patrick Murphy.

"While it may be true that they alone cannot garner a majority vote of the SCPI board, that does not mean that they cannot exert undue influence or instruct the other SCPI directors on how to vote," Murphy wrote in June.

She moved for leave to conduct jurisdictional discovery.

"Syngenta AG sits atop a vast but closely intertwined and carefully coordinated international network of subsidiaries that includes the defendant in this lawsuit, Syngenta Crop Protection," she wrote.

"The seat of power for that network, as well as its ultimate source of authority, is in Basel, Switzerland," she wrote.

"The Rosental compound in Basel acts as Syngenta's global headquarters, and is home to no fewer than 12 of Syngenta AG's wholly owned subsidiaries," she wrote.

Murphy wrote that plaintiffs intend to prove Syngenta AG dominates and controls Syngenta Crop Protection AG, which in turn controls Syngenta Crop Protection Inc.

She wrote that Syngenta AG is directly responsible for contamination of water supplies, and is ultimate owner of more than 200 subsidiaries operating all over the world.

Syngenta AG "has denied the human health threat of atrazine while concealing internal studies suggesting otherwise, and has manipulated the weight of scientific evidence to create the illusion of atrazine's safety," Murphy wrote.

She wrote that plaintiffs seek to understand the role Syngenta AG and other Basel companies play in atrazine activities in the United States.

She wrote that they would analyze Syngenta's corporate structure, the roles of key individuals, and whether the Basel companies control Syngenta Crop Protection Inc.

Gilbert granted leave to conduct jurisdictional discovery.

Tillery delivered the response to the motion to dismiss on Dec. 17, under seal.

On the same date, he sealed and filed a motion to strike declarations.

On Dec. 20, he sealed and filed a motion to substitute the motion to strike.

On Dec. 21, Gilbert wrote that it wasn't immediately apparent why he sealed them.

"Court records are presumptively open to the public," Gilbert wrote.

He ordered Tillery to explain why he sealed the motions, but he didn't order Tillery to explain why he sealed the response to the motion to dismiss.

Tillery wrote that Syngenta AG and Syngenta Crop Protection requested and obtained an extremely broad confidentiality order.

He wrote that it requires him to seal all pleadings that contain, attach or refer to confidential information.

"Plaintiffs fully agree with the court that court records are presumptively open to the public and should remain open to the public absent the genuine threat of disclosing trade secrets," Tillery wrote.

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