Syngenta asks court to deny renewed request to unseal documents

Bethany Krajelis Jun. 11, 2012, 9:38am


EAST ST. LOUIS - Syngenta Crop Protection and Syngenta AG has urged the U.S. District Court for the Southern District of Illinois to deny a pair of interveners' request for a ruling on its April 2011 motion to unseal documents in the class action lawsuit over the weed killer atrazine.

The Environmental Law and Policy Center (ELPC) and Prairie River Network filed their request on May 30, less than a week after the Syngenta defendants agreed to pay $105 million to settle the federal case over the commonly used agricultural herbicide.

In 2004, St. Louis attorney Stephen Tillery filed six separate class action lawsuits in the Madison County Circuit Court against various manufacturers of atrazine. Six years later, he brought the case to federal court on behalf of the city of Greenville and other Midwestern water providers, claiming that atrazine ran off farm fields and into their drinking water supplies.

The two environmental groups intervened in the case in July 2011. The documents they want unsealed were filed as exhibits in the plaintiff's opposition to the Syngenta AG's May 2010 motion to dismiss for lack of personal jurisdiction.

The interveners said in their May 30 motion that their year-old motion to unseal documents is "unfinished business" that needs to be addressed "prior to any resolution of the proposed settlement in this case."

"Although the parties' proposed settlement stipulates that 'neither [class counsel] nor plaintiffs nor any person acting on behalf of any of them have commissioned nor are any of them aware of any new scientific studies relating to atrazine not already in the public domain,' this stipulation does not satisfy the public's right of access to documents that have improperly remained under seal," the environmental groups assert in their request.

"The public has a right of access to these judicial record documents regardless of any stipulations and regardless of the settlement status of the case."

The Syngenta defendants, however, said in their June 6 response that the environmental groups "provide no new authority or argument to overcome the legal authority and justifications defendants have provided for maintaining their confidential business information under seal."

They further argue that "the pursuit of this information is futile because, as intervenors themselves acknowledge, none of the scientific information intervenors seek to release to the public is contained in the sealed documents in the judicial record."

Michael A. Pope, an attorney at McDermott, Will and Emery in Chicago who represents the Syngenta defendants, said today that the 88 documents his clients contend should remain under seal relate to the organization and operations of Syngenta AG, a Swiss holding company that does not manufacture or sell atrazine.

"Accordingly, these documents do not relate to the potential effect of atrazine on water in Illinois," the defendants assert in their response.

Because none of the documents relate to the potential effects of atrazine on water in Illinois, which is one of the aspects of the case that spurred the two environmental groups to intervene, Pope said that the group's argument over the public's right to access these documents "is nil."

A few days after the interveners asked for the documents to be unsealed last year, the court entered an order to show cause as to why it should not unseal the documents. In its May 2011 response to that order, the Syngenta defendants agreed that many of the documents filed under seal by the plaintiffs should not have been because either the defendants did not designate them as confidential or were not cited by the plaintiffs in their opposition to the motion to dismiss for lack of jurisdiction.

After they "conducted a renewed confidentiality review" on the documents that were designated as confidential and cited by the plaintiffs, the defendants said in their response that they "de-designated" some of the documents marked as confidential and agreed that some should be released.

The Syngenta defendants said they provided detailed justifications as to why "the limited number of documents containing confidential information" should remain under seal. Each of these justifications, the response claims, "falls within a category of confidential business information that warrants maintaining these documents under seal."

They also argue in their June 6 response that the interveners' argument over public access "is further diminished" because the court's order denying Syngenta AG's motion to dismiss for lack of jurisdiction was a "non-final order pending a complete evidentiary hearing."

"The court acknowledges that throughout its order denying Syngenta AG's motion to dismiss for lack of personal jurisdiction that material factual disputes exist regarding the court's jurisdiction over Syngenta AG," the defendants assert. "Accordingly, the issue of personal jurisdiction is non-final until those disputes are resolved in an evidentiary hearing. Because the parties have settled the case in its entirety, there will be no evidentiary hearing and thus, no final order."

Pope said today that the interveners' request is not necessarily tied to the upcoming settlement fairness hearing, which will take place Oct. 22 in Benton before U.S. District Judge Phil Gilbert. As such, Pope said he expects Gilbert will issue a ruling on the motion to unseal documents soon.

A proposed notice plan is scheduled to be mailed out by June 11.

Objectors to the settlement of fees or expenses to class counsel have until Aug. 27 to file a statement with the court. Under the proposed $105 million settlement, plaintiffs' attorneys will share about $34.9 million in fees.

If approved by the court, about 2,000 water districts will be eligible to make a claim under the settlement, which calls for a fixed payment of $5,000, plus a share of the remaining balance after legal fees and costs, to each claimant.

Howard A. Learner, the president and executive director of EPLC, represents the interveners. He did not immediately return a request for comment, which was made earlier today to EPLC's media relations manager.

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