Lawyers voice support for $32 million in fees in proposed atrazine settlement; Approximately $8.4 million sought in litigation expenses

Bethany Krajelis Aug. 24, 2012, 12:56am






It looks like the proposed $105 million settlement over atrazine may reach the final fairness hearing in October without facing any objections.

The deadline to object to the proposed settlement is Aug. 28 and as of Thursday, records show that no one has electronically filed an objection to the settlement or requested attorneys' fees on PACER.

If approved, the settlement would provide plaintiffs' attorneys with fees not to exceed one-third of the gross amount awarded to the class plus costs and expenses.

That figure works out to about $34.9 million based on the $105 million proposed settlement. Attorneys' fees, however, would drop to slightly more than $32 million after about $8.4 million in litigation costs and expenses get deducted from the gross amount of recovery.

Attorneys from Korein Tillery in St. Louis will share these fees with fellow lead counsel at the Texas law firm of Baron & Budd and other plaintiffs lawyers.

On behalf of the city of Greenville and several water providers in six Midwestern states, Stephen Tillery sued Syngenta Crop Protection and Syngenta AG in federal court in 2010.

The plaintiffs claim that atrazine, a common agricultural herbicide manufactured and sold by the Syngenta defendants, ran off farm fields and into their drinking water supplies, forcing them to incur expenses related to the testing, monitoring and filtering of their water.

After more than a year of negotiations, the Syngenta defendants in May agreed to pay $105 million to resolve claims of nearly 2,000 water providers.

Under the proposed settlement, claimants would receive a fixed payment of $5,000 to cover the cost of testing for atrazine. Some water providers, however, are in line to get much more under a relatively complicated formula laid out in the settlement.

A final fairness hearing over the proposed settlement will take place before U.S. Judge Phil Gilbert on Oct. 22 in Benton.

Although it appears no plaintiff has electronically filed an objection to the settlement, court records and the settlement website show that a few attorneys have submitted declarations in support of class counsel's motion for attorneys' fees.

Besides Tillery and Scott Summy, a shareholder at Baron & Budd in Texas, attorneys Bob Perica, Thomas Crosby and Martin Kerckhoff filed declarations supporting the proposed attorneys' fees.

Perica is a Wood River attorney who also serves as legal counsel for Holiday Shores Sanitary District, the lead plaintiff in a suit Tillery brought in Madison County against the Syngenta defendants in 2004.

In his declaration, Perica said the district estimated that it suffered millions of dollars in damages as a result of atrazine contamination, but lacked the ability to pay ongoing legal costs to bring the litigation.

Saying that Holiday Shores didn't think it could retain competent counsel for anything less than one-third of whatever the plaintiffs recovered, Perica wrote in his declaration that the district's board ultimately hired Korein Tillery and Baron & Budd to handle the matter based on their "reputation for skill and experience in high-risk contingent litigation."

"I believe that the skill and expertise exhibited by Korein Tillery during these hearings made the defendants decide to settle this case," Perica wrote, adding that the district has been "extremely pleased" by the class counsel's efforts and support their request for attorneys' fees.

"I do not know of any other firms that could have maintained eight years of payroll for attorneys and staff in addition to advancing the costs of litigation, including travel, on a contingent basis," Perica wrote.

Crosby, a partner at Winters, Brewster, Crosby & Schafer in Marion, echoed Perica's support for the proposed attorneys' fees in his own declaration.

Through his experience of handling more than 25 class action suits and a review of the settlement terms in this case, Crosby wrote that he understands the enormous amount of resources needed to bring litigation of this magnitude.

"This litigation requires class counsel with the resources, time, money and legal prowess to successfully develop and prosecute a theory of liability and competently handle millions of pages of discovery while acquiring technical expertise to counter years of research on the health effects of a herbicide funded by a multi-national agricultural industrial giant," Crosby asserted in his declaration.

Crosby also mentioned that he would not have bid or contracted to take on this case as lead or co-class counsel, but that if he did, would not have done so for a contingency agreement that provided attorneys' fees equal to one-third of the recovery, a percentage he contends is "in accord with what is negotiated in the market."

In a declaration nearly identical to the one filed by Perica, Kerckhoff also wrote in support of the proposed attorneys' fees.

Kerckhoff serves as divisional general counsel and secretary for the central division of American Water Works Company and deputy general counsel of operations for the company, which includes subsidiaries named as plaintiffs in the class action suit.

When this case was filed, Kerckhoff wrote that American Water subsidiaries in Illinois, Indiana, Iowa and Missouri estimated millions of dollars in damages as a result of atrazine contamination and didn't think the risk of the litigation justified the cost of ongoing attorney expenses.

He asserts in his declaration that the costs sought to be recovered by class counsel are the type of expenses his company expected and would ordinarily reimburse to outside counsel.

Those expenses, Kerckhoff wrote, include those for "filing fees, court transcripts, PACER costs, expert witness fees, electronic legal research, photocopying, postage and travel expenses."

Tillery wrote in his declaration that based on the complexity of the case, he knew that handling the matter would be "an extraordinarily expensive undertaking," but thought the potential benefits of the litigation to the plaintiffs "were worth the potential risks."

Given the risks involved in handling the case, Tillery wrote that his firm would never have agreed to represent the plaintiffs without a contingent agreement providing attorneys' fees equal to one-third of the recovery, plus reimbursement of expenses.

That amount, he said, "is the prevailing rate for legal fees in complex legal matters presenting significant risk," and as such, doubts that the plaintiffs would have been able to retain representation for anything less.

In his declaration, Tillery detailed the number of hours each of his attorneys spent in its representation of the class, including the tasks of having to comb through thousands of pages of documents, attend numerous hearings, file dozens of motions and defend its theories against a well-funded company.

He said in his declaration that he requests, and defendants don't oppose, an award of attorneys' fees in the amount of one-third of the recovery after deducting nearly $8.4 million in reimbursements for costs and expenses.

It appears that figure covers the amount of money plaintiffs' lawyers spent on the litigation since Tillery filed similar lawsuits over atrazine in Madison County Circuit Court in 2004.

"Korein Tillery made every reasonable effort to limit expenses and in no event were more than customary rates charged," Tillery asserts.

Summy, the Texas lawyer who serves as co-class counsel, said in his declaration that his firm has devoted more than 36,000 hours in its representation of the plaintiffs in the case against the Syngenta defendants.

His firm alone spent more than $4.5 million on litigation expenses over the past eight years "without any guarantee of reimbursement," Summy wrote.

Based on the $8.4 million figure for expenses Tillery mentioned in his declaration, it appears that Korein Tillery spent about $4.9 million on litigation expenses.

"Nor was there a guarantee we would recover a fee," Summy added. "Not many firms in the United States would or could take that kind of financial risk."

Ted Frank, the founder and president of the Washington D.C.-based Center for Class Action Fairness, said in an email that no one retained his group to object to the proposed attorneys' fees in the atrazine settlement.

Frank's group represents consumers dissatisfied with their counsel in class action suits and settlements. Since its creation 2009, the center has filed objections to at least a dozen proposed settlements and has been successful on a few of them.

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