Madison County atrazine suits dismissed; Syngenta defendants appeal order to unseal documents

Madison County Circuit Judge William Mudge has dismissed six class action complaints that led to the now-settled federal suit over atrazine. Mudge on Friday granted agreed motions to dismiss with prejudice in the six suits Holiday Shores Sanitary District in 2004 against Syngenta Crop Protection and other companies that made or sold atrazine. A handful of Illinois cities were later added as named plaintiffs in the cases. Plaintiffs in these complaints, as well as the 2010 federal suit that was approved for settlement in October, claim that the commonly used agricultural herbicide entered their water supplies and forced them to incur the costs associated with testing, monitoring and filtering their water. U.S. District Judge Phil Gilbert put his stamp of approval on the $105 million settlement about three months ago and noted that the agreement would not only resolve the federal suit, but the six class action complaints in Madison County Circuit Court. Mudge’s dismissal orders appear to make that official, dismissing each of the six suits in their entirety with prejudice. Each party, his orders state, is responsible for its own costs and attorneys’ fees. St. Louis attorney Stephen Tillery brought the six suits and represented the plaintiffs in the federal suit. Attorneys at his firm are set to share about $32 million in attorneys fees with attorneys at Baron & Budd in Texas. Dismissal orders aside, parties and the two intervenors to the federal suit recently filed appeals and responses to an order that directed the clerk to unseal 86 discovery documents. U.S. Magistrate Judge Philip Frazier’s Dec. 4 order stems from a request that the Environmental Law and Policy Center (ELPC) and Prairie River Network (PRN) made in 2011 and again in May. The two environmental groups intervened in the suit in July 2011 and sought to unseal documents filed as exhibits in the plaintiffs’ opposition to the Syngenta defendants’ 2010 motion to dismiss for lack of personal jurisdiction. Even though the parties had agreed to settle before the motion was filed, ELPC and PRN argued in their motion that the public has a right to access these documents. In his order, Frazier went through each of the sealed documents and exhibits at issue in the motion. These documents range in content including transcripts of deposition testimony, company presentations, development committee discussions, marketing ideas, an employee handbook, reports and emails. Frazier determined that there was no “glaring and obvious justifications” supporting the seal of the majority of the transcripts of deposition testimony, with the exception of some individuals’ personal information. When it came to the Syngenta defendants’ claim that some of these documents included trade secrets and confidential product development information, Frazier wrote in his order that “this rationale has not been substantiated.” He also determined that the defendants “failed to meet their burden by showing the need to maintain confidentiality” and declined “to comb through the exhibit to locate any such material.” The Syngenta defendants on Dec. 18 appealed and requested reconsideration of Frazier’s order, saying it should be overturned "with respect to just eight of those 86 documents.” They contend that Frazier “misapprehended the law related to public access to documents filed with the Court, and “failed to consider whether each document influenced the court’s decision in denying Syngenta AG’s jurisdictional motion.” The Syngenta defendants "appeal the order to unseal the following documents because they contain highly sensitive business information that would provide their competitors and business partners with a competitive advantage if unsealed,” they claim. One of the documents the defendants assert should remain under seal is Exhibit 329, which includes “sanctioning process guidelines,” or the “internal procedures governing defendants’ investment and divestment of assets.” Among other documents, the defendants assert that Exhibits 346 and 348, which include Syngenta’s board meeting minutes and resolutions, should remain under seal because they were not cited in the court’s ruling over the jurisdictional motion. “[T]hese exhibits should remain under seal because they go to the heart of Syngenta Crop Protection LLC’s decision making and business strategies,” the defendants assert, explaining that these exhibits reflect internal discussions about business operations, financial transactions and long term strategic planning. ELPC and PRN on Jan. 4 responded to the appeal, claiming that “the defendant does not come close to meeting the stringent ‘clearly erroneous or contrary to law’ standard … for reversing the” Dec. 4 order. “Moreover, there is no legal basis for the new exceptions to public access to judicial record documents that the Defendant’s arguments, if accepted on appeal, would essentially create,” they assert in their response. Chicago attorneys Howard A. Learner, Jennifer L. Cassel and Albert Ettinger submitted the response on behalf of the intervenors. Michael Pope, Christopher Murphy and Peter Schutzel of McDermott, Will & Emery in Chicago submitted the appeal for the defendants. St. Louis attorney Kurt Reeg and New Orleans attorneys Mark Surprenant and Lara White were also listed as attorneys for the defendants on the appeal and reconsideration request.

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