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City of Greenville v. Syngenta Crop Protection, Inc.

United States District Court, S.D. Illinois

October 23, 2012

CITY OF GREENVILLE, et al., individually, and on behalf of all others similarly situated, Plaintiffs,
v.
SYNGENTA CROP PROTECTION, INC., and Syngenta AG, Defendants.

Page 903

Stephen M. Tillery, Aaron M. Zigler, Christie R. Deaton, Christine J. Moody, Christopher A. Hoffman, John C. Craig, Michael E. Klenov, Korein Tillery, St. Louis, MO, Carla Burke, Celeste Evangelisti, Mitchell E. McCrea, Scott Summy, Baron & Budd, Dallas, TX, Patricia S. Murphy, Murphy Law Office, Energy, IL, for Plaintiffs.

Kurtis B. Reeg, Reeg Lawyers, LLC, St. Louis, MO, Brian A. Fogerty, Christopher MacNeil Murphy, Elizabeth A. Laughlin, Holland Marie Tahvonen, Jocelyn D. Francoeur, Michael A. Pope, Peter M. Schutzel, Todd R. Wiener, McDermott, Will et al., Chicago, IL, Charles Adam Cerise, David M. Stein, Lara E. White, Mark C. Surprenant, Adams and Reese LLP New Orleans, LA, for Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on the Unopposed Motion for Final Approval of Settlement (Doc. 321), and Class Counsel's Motion for an Award of Attorneys' Fees and Expenses from the Common Fund. (Doc. 308). The parties ask the Court to dismiss with prejudice all claims asserted by the Settlement Class against the Defendants and permanently enjoin any Class Member who has not opted out from bringing any proceeding in any Court based on any released claim. Class Counsel also asks the Court to award them attorneys' fees and costs. Having considered the matter, and being duly advised, the Court GRANTS the motions (Docs. 308 & 321) and ORDERS as follows.

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I. PROCEDURAL BACKGROUND

On May 30, 2012, 2012 WL 1948153, this Court granted preliminary approval of the Settlement Agreement, conditionally certified a Settlement Class, appointed Class Counsel, designated the Plaintiffs as Settlement Class Representatives, approved forms of notice to be sent to the Settlement Class members, and scheduled a final fairness hearing (Doc. 297).

The class consists of at least 1,930 Community Water Systems that have detected atrazine in their water supplies. These systems range in size from very small to very large, and include systems that have found varying levels of atrazine in their water. Notice was given to these systems in accordance with the Court's Order by both direct mail and publication and the settlement administrator established a settlement website and toll-free question line. Furthermore, on June 4, 2012, Defendants' counsel served Notice of the settlement on the U.S. Attorney General, and the Attorney General and Department of Agriculture for each individual state. As the Court previously found, this Notice Plan satisfies due process.

Class Counsel nevertheless undertook a multi-pronged supplemental notice campaign. Class Counsel sent a second individual notice by first-class letter on August 2, 2012, to each of the known class members who had not yet filed a claim. The next day, Class Counsel sent a third individual notice by e-mail to each of the 765 known class members for which a valid e-mail address could be identified.

In addition, from August 2 to August 28, 2012, ten of the lawyers representing the plaintiffs in this matter placed personal phone calls to class members. These calls were either with attorneys serving as counsel to the class member or a member of management of the class members. Over the course of four weeks, these lawyers were able to personally reach more than 99 percent of the class members with estimated claims greater than $10,000. The attorneys explained the settlement terms, answered questions, and made themselves available to personally assist in the claims process. Finally, on August 13, 2012, class counsel sent a fourth notice letter to the class members who were identified as having not yet filed a claim or having received a personal phone call.

The claims administrator logged 557 calls to the toll-free information line and the settlement website received a total of 10,313 visitors who viewed a total of 25,627 web pages. The settlement also experienced an unusually high claim rate. Even though many class actions experience claims rates of less than 15%, more than half of the class members identified prior to notice filed claims, and those claims account for 85.7% of the total net settlement proceeds based on Class Counsel's preliminary estimates.

As would be expected, systems with the most atrazine contamination, and therefore the largest claims, filed claims at an even higher rate. Almost 83% of the class members with preliminary estimates greater than or equal to $10,000 have filed claims, accounting for 91.4% of the funds preliminarily allocated to this group.

In contrast, only twenty-four class members with claims totaling $549,606.55, or 0.523% of the total settlement proceeds, have opted out. No timely objections were received.

Class Counsel audited the claims process. Following the close of the claim period, Counsel notified each known class member for which a claim had not been received as of the expiration of the deadline to ensure no claims were lost in transit. For each claim received, the claimant's information was reviewed to ensure

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that the system met the class definition. This audit revealed 10 claims filed by non-class members. Counsel then reviewed the submitted test data for accuracy. This review revealed 5,617 test records that were inaccurately reported or that were taken from a source other than the Class Member's Water.

Consistent with the notice given, a final fairness hearing was held on October 22, 2012. Counsel for the parties appeared and several class members appeared to support the settlement. One class member appeared and objected to the exclusion of its wholesale water business from the class definition. This class member had not filed a formal objection to the settlement. No other interested person appeared to be heard regarding the fairness of the settlement.

II. SETTLEMENT TERMS

The proposed settlement would put an end to the expense, inconvenience and distraction of further litigation while providing significant monetary relief to the proposed class in the form of $105,000,000.00, in exchange for a release resolving Plaintiffs' claims related to the presence of atrazine in their water. (Agreement, ECF No. 294-1). The fund is not illusory. All of the fund, after fees and costs, will be distributed to the class. ( Id. at ¶ 8.4.2.). None reverts to the defendants. ( Id. ).

In exchange for this monetary relief, the Releasing Parties (i) release the Released Parties from all Released Claims, and (ii) covenant not to sue the Released Parties based on any Released Claims. In addition, upon entry of the Final Judgment, the Releasing Parties shall be deemed to have granted the Released Parties an irrevocable, nonexclusive, transferrable license for a period of ten (10) years commencing with the date that is the earlier of Final Judgment or July 1, 2014, holding them harmless for all Released Claims or claims which, had they accrued prior to Final Judgment, would have been Released Claims. See Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978 (7th Cir.2002). Provided however, that this license shall not apply to any claim arising from point-source contamination, as defined in Section 502(14) of the Clean Water Act, resulting from the Released Parties' development, manufacture, formulation, distribution, transportation, storage, loading, mixing application, or use of atrazine (2-chloro-4 ethylamino-6-isopropylamino-s-triazine) or products that contain atrazine (2-chloro-4 ethylamino-6-isopropylamino-s-triazine) as an active ingredient or to any claim against any applicator or user of any product that contains atrazine (2-chloro-4 ethylamino-6-isopropylamino-s-triazine) as an active ingredient arising from the presence of Atrazine in the Releasing Parties' Water as a result of any use of such product not in accordance with the precautionary statements and instructions for use on the label of such product. (Agreement, ¶ 9.1).

Released Claims means all claims of the Releasing Parties arising out of, or relating to, the presence of Atrazine in the Releasing Parties' Water as a result of the development, manufacture, formulation, distribution, transportation, storage, loading, mixing, application, or use of atrazine (2-chloro-4 ethylamino-6-isopropylamino-striazine) or products that contain atrazine (2-chloro-4 ethylamino-6-isopropylamino-striazine) as an active ingredient that any Releasing Party asserted or could have asserted in the Litigation. Released Claims shall not include any claim for indemnity, contribution among joint tortfeasers or apportionment of liability or fault, with respect to any claim against a Releasing Party, arising from the consumption of the Releasing Parties' Water, that is not a

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claim for property damage or economic loss. ( Id. at ¶ 2.28).

Released Parties means Defendants and all other manufacturers, contract manufacturers, research collaborators with Defendants or with such other manufacturers, formulators, distributors, retailers, purchasers, applicators, and users of Atrazine, including the defendants (in addition to the Defendants) in the Litigation, which are Sipcam Agro USA, Inc., Growmark, Inc., Drexel Chemical Co., United Agri Products, Makhteshim-Agan of North America, Inc. and Dow Agrosciences LLC, and their present and former parents, subsidiaries, divisions, affiliates, stockholders, benefit plans, officers, directors, employees, attorneys, insurers, agents and any of their legal representatives, and the predecessors, heirs, executors, administrators, successors and assigns of each of them. ( Id. at ¶ 2.29).

Releasing Parties means the Plaintiffs, on behalf of themselves and all Class Members, and their respective successors, heirs and assigns, and anyone acting on their behalf, including in a representative or derivative capacity. ( Id. at § 2.30).

The release is narrowly tailored. The settlement does not interfere with the jurisdiction of any regulatory agency, and it preserves certain claims arising from future point-source contamination or off-label use and claims that otherwise ...


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