Gilbert approves $105 million settlement in atrazine lawsuit

Bethany Krajelis Oct. 22, 2012, 1:28pm



BENTON - U.S. District Judge Phil Gilbert on Monday approved a $105 million settlement in the class action lawsuit over atrazine, a decision that marks the beginning of the end to nearly eight years of litigation.

Saying that he would enter his approval order Tuesday morning, Gilbert told attendants of Monday's nearly two-hour-long final fairness hearing that he believes the settlement is "fair, reasonable and adequate."

The settlement resolves the federal lawsuit that the City of Greenville and several other Midwestern water providers brought in 2010 against Syngenta Crop Protection and Syngenta AG. It will also resolve similar claims that were brought six years earlier in the Madison County Circuit Court.

The plaintiffs in both the state and federal suits claimed that atrazine -- a commonly used agricultural herbicide manufactured by the Syngenta defendants -- entered their water supplies and forced them to incur the costs associated with the testing, monitoring and filtering of their water.

Under the settlement, each water provider that filed a valid claim will receive $5,000, an amount that will cover the cost of about 20 water tests.

In addition, claimants will share the remaining money in the $105 million settlement after about $8 million in litigation costs are subtracted. The remaining settlement fund money will be split up based on how much and when atrazine was found in the claimants' water, as well as the population they serve.

The $8 million in litigation costs accounts for the money that co-class counsel -- St. Louis attorney Stephen Tillery and Texas attorney Scott Summy -- spent on a variety of litigation expenses. The two firms basically fronted the plaintiffs the cost of their
representation and litigation expenses under a contingency agreement.

After these expenses are subtracted, plaintiffs' attorneys will share one-third of the settlement fund, which appears to be slightly more than $32 million.

Tillery told Gilbert the settlement is more than fair given the possibility that the plaintiffs might not receive any recovery if the case went to trial.

He also stressed the complexity of the case, the amount of discovery, the efforts of class counsel to provide proper notice and the lack of objections from claimants in urging Gilbert to put his stamp of approval on the settlement.

"The settlement goes a long way" in resolving the plaintiffs' claims, he said. "We worked our tails off on this case."

Pointing to the challenges the plaintiffs would face at trial, Gilbert asked attorneys for the Syngenta defendants why their clients agreed to pay about 76 percent of the $139 million estimated value of the claims.

Michael Pope, a Chicago lawyer on the legal team representing the Syngenta defendants, said that the figures discussed during negotiations were higher than $139 million and even though atrazine met federal environmental standards, his clients believed "it was the right time to resolve the case."

"It was time to bring this litigation to an end because the resolution was unknown" Pope said, echoing Tillery's statements on the large amount of time and money it would take to finish litigating the matter.

The settlement, Pope said, also buys the Syngenta defendants "10 years of peace" from litigation over matters related to alleged atrazine contamination.

Under the settlement, Tillery said water systems with valid claims in Illinois will share about $15 million.

He also said systems with valid claims in Ohio will see about $9.9 million from the settlement. Those in Missouri will follow with about $9.7 million, Kansas at $7.9 million, Indiana at about $7 million and Iowa at about $3.5 million.

The amount each of the 1,017 claimants will receive under the settlement varies, Tillery said. The settlement amount, he said, ranges from more than $1 million for three claimants to between $5,000 and $10,000 for 545 claimants.

When it comes to some of the claimants in Madison and St. Clair counties, Tillery told Gilbert that the City of Highland will get about $255,000 and the village of Freeburg will receive $169,000 under the settlement.

Tillery did not say how much the settlement will provide Holiday Shores Sanitary District (HSSD), named plaintiff to the 2004 Madison County litigation.

HSSD's attorney, Bob Perica, said after Monday's hearing that he was unsure of the exact amount, but that he and HSDD board members "are so happy" with the settlement.

He said the settlement money will offset the cost associated with the recent installation of a carbon filter system at the plant and provide HSSD with money that will help prevent it from having to raise consumer rates.

"We are tickled to death," he said following the final fairness hearing, as attorneys representing the plaintiffs shared in smiles and congratulatory handshakes.

Besides Perica, a handful of attorneys representing some of the other plaintiffs spoke in support of the settlement.

Attorney Scott Sullivan, who said he represents the Village of Smithton and two other water systems in Missouri, asked Gilbert to approve the settlement "as quickly as possible" because his clients "desperately need" the money.

He also told Gilbert he supports the attorneys' fee request, saying he couldn't imagine anyone who would oppose it given the risk the two law firms took when they signed as counsel.

Tom Skelly, the manager of the water division of City, Water, Light and Power (CWLP) in Springfield, told Gilbert that the settlement will go a long way to cover previously-paid costs associated with removing atrazine from its water.

Under the settlement, Springfield will get about $1.3 million. Skelly said WWLP spent about $827,000 on the testing, monitoring and filtering of atrazine between 1994 and 2011.

During the hearing, Gilbert asked Tillery whether the mayor of Nashville, for instance, could use the settlement award to buy a new street sweeper.

Tillery said the mayor could use the settlement money for whatever he wanted, noting that the settlement does not include restrictions on how claimants can spend the money.

Noting his rejection of an objection to the settlement that was filed after the deadline, Gilbert asked Tillery why 24 potential claimants opted-out of the $105 million deal.

Tillery said the bulk of those opt-outs are small, water systems owned by the U.S. government, which didn't have the manpower to evaluate claims in a timely way.

Although his client didn't file an objection to the settlement, Larry Sanders, general counsel for Rend Lake Conservancy District in Benton, told Gilbert he wishes the district's claims had not been reduced.

Sanders said the claim evaluation process reduced the district's claims from 150,000 people to 3,000 once the populations served by its wholesale clients were subtracted.

Tillery told Gilbert that Sanders was not the only attorney to raise this concern, but that the settlement did not cover claims for wholesalers. As such, Rend Lake can only receive money for the population it serves under the settlement's formula.

Although Gilbert's approval of the settlement closes the case on the plaintiffs' claims over atrazine, Pope told the judge that "once we leave here today, we still have some work to do."

He said attorneys will need to get the Madison County lawsuits, which were put on hold while the federal suit was pending, dismissed and start the process of paying out the settlement.

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