Grains Merch. LLC v. Syngenta AG (In re Syngenta AG Mir 162 Corn Litig.)

Decision Date07 December 2018
Docket NumberMDL No. 2591,Case No. 14-md-2591-JWL
Citation357 F.Supp.3d 1094
CourtU.S. District Court — District of Kansas
Parties IN RE: SYNGENTA AG MIR 162 CORN LITIGATION, This Document Relates to All Cases Except: Louis Dreyfus Co. Grains Merchandising LLC v. Syngenta AG, et al., No. 16-2788 Trans Coastal Supply Co., Inc. v. Syngenta AG, et al., No. 14-2637 The Delong Co., Inc. v. Syngenta AG, et al., No. 17-2614 Agribase Int'l Inc. v. Syngenta AG, et al., No. 15-2279

John W. Lungstrum, United States District Judge

In this multi-district litigation (MDL), the Court provisionally certified a settlement class and preliminarily approved a settlement agreement resolving claims against Syngenta1 (Doc. # 3532). Plaintiffs now seek final settlement approval pursuant to Fed. R. Civ. P. 23(e). On November 15, 2018, the Court conducted a final settlement hearing (of which the settlement class received due notice), at which the Court also heard argument concerning the total amount of attorney fees that should be awarded from the settlement fund. For the reasons set forth below and on the record of the hearing, the Court grants the motion for final approval (Doc. # 3776), and it will issue a separate order setting forth the granted relief as requested by plaintiffs. The Court also awards total attorney fees in the amount of one third of the settlement fund, or $ 503,333,333.33, and it therefore grants the petition for attorney fees filed by MDL co-lead counsel and settlement class counsel (Doc. # 3585) to that extent.2 The Court approves the withdrawal of two objections (Doc. # 3684, withdrawal requested in Doc. # 3774; Doc. # 3673, withdrawal requested in Doc. # 3782), and it overrules all other objections to the settlement or to the total fee award (Doc. ## 3545, 3667, 3669, 3671, 3672, 3680, 3681, 3682). Finally, the Court grants as unopposed the special master's pending motion for mediation expenses (Doc. # 3564).

I. Background

Beginning in 2014, corn farmers and others in the corn industry filed thousands of similar suits against Syngenta in various jurisdictions, including class actions. The suits generally related to Syngenta's commercialization of genetically-modified corn seed products, Viptera and Duracade, which contained the trait MIR 162, without approval of that trait by China, an export market. The plaintiffs alleged that Syngenta's commercialization of its products caused the genetically-modified corn to be commingled throughout the corn supply in the United States; that China rejected imports of all corn from the United States because of the presence of MIR 162; that such rejection caused corn prices to drop in the United States; and that corn farmers and others in the industry were harmed by that market effect. In December 2014, this MDL was created, and it encompasses hundreds of suits brought by corn producers and non-producers. The Court appointed co-lead plaintiffs' counsel, who filed master consolidated class action producer and non-producer complaints in March 2015.

On May 5, 2015, the Court ruled that Syngenta had improperly removed cases to federal court on the basis of the federal common law of foreign relations, see In re Syngenta AG MIR 162 Corn Litig. , 2015 WL 2092435 (D. Kan. May 5, 2015) (Lungstrum, J.), and thus many cases were remanded to state court. On September 11, 2015, the Court granted in part and denied in part Syngenta's motions to dismiss. See In re Syngenta AG MIR 162 Corn Litig. , 131 F.Supp.3d 1177 (D. Kan. 2015) (Lunstrum, J.). Most significantly, the Court rejected Syngenta's arguments based on a lack of duty and the economic loss doctrine, and plaintiffs' negligence, tortious interference, Lanham Act, and state consumer protection act claims survived at least in part. See id. The Court also dismissed counterclaims and third-party claims asserted by Syngenta against certain grain handlers. See In re Syngenta AG MIR 162 Corn Litig. , 2016 WL 1312519 (D. Kan. Apr. 4, 2016) (Lungstrum, J.).

The parties engaged in substantial discovery, which was coordinated across multiple jurisdictions pursuant to orders issued by this Court and courts in Minnesota and Illinois. Millions of pages of documents were reviewed, hundreds of depositions were taken in multiple countries around the world, and numerous experts were retained and deposed. In September 2016, after an evidentiary hearing, the Court certified a nationwide class of corn producers to assert plaintiffs' Lanham Act claims and eight state-wide classes of producers to assert state-law common-law tort and statutory claims. See In re Syngenta AG MIR 162 Corn Litig. , 2016 WL 5371856 (D. Kan. Sept. 26, 2016) (Lungstrum, J.). The Court subsequently granted summary judgment to Syngenta on the Lanham Act claims, see In re Syngenta AG MIR 162 Corn Litig. , 249 F.Supp.3d 1224 (D. Kan. 2017) (Lungstrum, J.), but the Kansas class claims proceeded to trial. After the Court ruled on the parties' Daubert motions, see In re Syngenta AG MIR 162 Corn Litig. , 2017 WL 1738014 (D. Kan. May 4, 2017) (Lungstrum, J.), the Kansas claims were tried to a jury over three weeks in June 2017, and the jury returned a verdict in favor of the Kansas class in the amount of $ 217,700,000. Trials were then scheduled for the claims asserted by the other certified state-wide classes.

Thousands of similar suits against Syngenta were also filed in state court in Minnesota, and in May 2015 those suits were consolidated before a single judge, who appointed lead plaintiffs' counsel. In April 2016, the Minnesota court denied in large part Syngenta's motion to dismiss. The trial of one bellwether plaintiff's individual claims resulted in a mistrial in April 2017, and that plaintiff subsequently settled with Syngenta. The Minnesota class action trial began in September 2017, but that trial was never completed, as the parties reached the instant settlement. Similar claims were also litigated against Syngenta in state and federal courts in Illinois. Various ethanol plants also filed suits against Syngenta in five other states.

In March 2016, this Court and several others with related cases appointed a special master for purposes of settlement. In August 2017, the Court appointed a Plaintiffs' Settlement Negotiation Committee ("PNC") to work towards a settlement with Syngenta. In appointing the members of the PNC, the Court sought to "balance[ ] the goals of representing the interests of different groups of producer plaintiffs while maintaining a workably sized group to conduct settlement negotiations." On September 25, 2017, the PNC executed a term sheet with Syngenta providing for a total settlement amount of $ 1.51 billion. Over the next several months, with the help of the special master and with oversight by the various courts, the PNC negotiated with Syngenta the terms of a final settlement agreement ("the Agreement"), which the parties executed on February 26, 2018.

The Agreement's terms include the following: In exchange for releases of claims based on the sale and marketing of Viptera and Duracade, Syngenta will pay a total of $ 1.51 billion, with two initial deposits totaling $ 400 million and the remainder deposited within 30 days after final court approval. Syngenta has no right of reversion of any of that amount. The Agreement is contingent on certification of a nationwide settlement class, divided into four subclasses generally consisting of corn producers who did not purchase Viptera or Duracade; corn producers who did purchase one of those products; grain handling facilities (except for certain excluded exporters); and ethanol producers. The Agreement sets out the allocation of the settlement fund among the members of the four subclasses; a claims procedure; an opt-out procedure; and a notice plan.

After execution of the Agreement and with leave of the Court, plaintiffs filed a fourth amended master class action complaint. By that complaint, plaintiffs seek certification of the same nationwide class and subclasses, asserting class claims based on the federal Lanham Act and certain Minnesota statutes.

On April 10, 2018, the Court granted plaintiffs' motion for preliminary approval of the Agreement. See In re Syngenta AG MIR 162 Corn Litig. , 2018 WL 1726345 (D. Kan. Apr. 10, 2018) (Lungstrum, J.). Specifically, the Court preliminarily approved the settlement; provisionally certified the settlement class and subclasses as set forth in the fourth amended complaint; appointed representative plaintiffs for the subclasses; appointed class counsel; approved the claims procedure, opt-out procedure, and notice plan; appointed the notice and claims administrator; appointed special masters to oversee the settlement and claims procedures; and imposed particular deadlines and set the hearing on final approval of the settlement.

II. Final Approval of Settlement
A. Satisfaction of Requirements for Approval

Under Rule 23, a class action settlement may be approved by the Court only upon a finding that it is "fair, reasonable, and adequate." See Fed. R. Civ. P. 23(e)(2).

In deciding whether to approve a class settlement, a district court considers whether (1) the settlement was fairly and honestly negotiated, (2) serious legal and factual questions placed the litigation's outcome in doubt, (3) the immediate recovery was more valuable than the mere possibility of a more favorable outcome after further litigation, and (4) the parties believed the settlement was fair and reasonable.

See Tennille v. Western Union Co. , 785 F.3d 422, 434 (10th Cir. 2015) (internal quotation and citation omitted). The Court finds that each of the four factors cited by the Tenth Circuit is satisfied here and that this settlement is indeed fair, reasonable, and adequate.

First, the Court finds that the settlement was fairly and honestly negotiated. The Agreement was reached by the parties only after a long period of negotiation over months and years. The settlement negotiation was overseen by special...

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