Plaintiffs in settled suit over atrazine ask judge to deny defendants' motion for reconsideration

By Bethany Krajelis | Aug 16, 2013




The plaintiffs in the now settled class action lawsuit over atrazine have asked a federal judge to deny the defendants’ request for reconsideration of a July 22 ruling that denied their motion to compel.

Syngenta AG and Syngenta Crop filed the motion to compel last month in an attempt to force the plaintiffs’ attorneys to comply with a 2010 protective order that required the parties to return or destroy confidential information produced in discovery within 120 days of the case’s conclusion.

The court in October 2012 approved a $105 million settlement, an agreement that took effect Dec. 26 and resolved a class action suit that several municipalities and water providers in six states brought in 2010 against the Syngenta defendants.

Represented by Stephen Tillery and other attorneys at Korein Tillery in St. Louis and Baron & Budd in Texas, the plaintiffs claimed that atrazine, an agricultural herbicide, had entered their water supplies and forced them to pay for the testing, monitoring and filtering of their water.

The Syngenta defendants argued in their motion to compel that the parties agreed to extend that protective order’s 120-day period to June 20, but had not received certification of compliance from the plaintiffs’ attorneys as of July 10.

In his July 22 order denying the defendants’ motion to compel, U.S. Magistrate Judge Philip M. Frazier noted that the case is currently on appeal and “appeals have jurisdictional significance.”

The appeal Frazier referred to in his order came from the Environmental Law & Policy Center (ELPC) and Prairie Rivers Network (PRN), two groups that have been fighting to unseal documents ever since they intervened in the class action suit in 2011.

The two groups in March appealed a ruling U.S. District Judge J. Phil Gilbert handed down earlier that month that ordered some additional documents to be unsealed, but held that those not directly cited in the plaintiffs’ briefs should remain under seal.

The Seventh Circuit Court of Appeals is scheduled to hear arguments over that appeal at 10 a.m. Sept. 10 at Chicago’s federal courthouse.

In its motion to reconsider, the Syngenta defendants claim that the federal court has jurisdiction to rule on its motion to compel because the issue in that motion “is completely separate” from the issues that the intervenors’ appealed to the Seventh Circuit.

In its recently-filed response to the defendants’ motion for reconsideration, the plaintiffs assert that such motions should only be granted if “a manifest error of law or fact” exists.

“If a motion to reconsider presents no new facts, no new law, and no showing that the court has patently misunderstood the previously presented arguments previously presented, the motion should be summarily denied,” the plaintiffs contend.

They add, “Syngenta’s Motion to Reconsider offers none of these things and thus should be denied.”

Besides the response to the defendants’ motion, the plaintiffs filed a motion this month in the Seventh Circuit Court of Appeals that seeks to maintain the confidentiality of two documents.

The Syngenta defendants filed a similar motion with the federal appeals panel this month over the same two documents at issue in the plaintiffs’ motion, as well as an additional two.

Both motions, which stem from the pending appeal brought by ELPC and PRN, were granted on Tuesday, according to court records.

Tuesday’s court order also notes that all four documents shall be removed from the docket and that they should remain under seal in the district court.

According to the plaintiffs' motion, Documents 309 and 310 were filed in support of class counsel’s fee petition and included retention agreements “entered into by municipalities seeking legal representation concerning water contamination they had suffered.”

The plaintiffs argued in their motion that “disclosure of these agreements would reveal the identity of municipalities concerned with certain contaminants of its water supply and their ongoing investigation of its legal options.”

The Syngenta defendants in their motion asked the court to maintain the confidentiality of Documents 309 and 310,  as well as Documents 112 and 115.

Document 112, the defendants’ motion states, includes the plaintiffs’ response in opposition to their motion to dismiss, as well as confidential documents attached as exhibits.

Document 115 contains additional confidential documents that were filed under seal, according to the motion.

The Syngenta defendants assert that all four of these documents “are completely irrelevant to the issues on appeal” and as such, should be removed from the record and returned to the district court.

“The issues on appeal require the Court to make a purely legal determination as to whether there is a presumption of public access to sealed documents that are filed with the District Court but are not relied upon by the District Court,” the defendants contend, stressing that the four documents “have no bearing whatsoever on this appeal.”

Chicago attorneys Michael Pope, Christopher Murphy and Brian Fogerty of McDermott, Will & Emery submitted the motion on behalf of the Syngenta defendants. Tillery and Aaron Zigler submitfiled the plaintiffs’ motion.

Howard Learner, ELPC’s president and executive director, and his colleague, Jennifer Cassel, represent ELPC and PRN in their pending appeal.

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