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ND corn farmers sue lawyers in Syngenta GMO case

MINNEAPOLIS -- Two North Dakota farm families are plaintiffs in a class action fraud suit against one of the Texas law firms in the Syngenta corn suits, alleging the lawyers duped farmers into filing individual suits rather than joining what woul...

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Mikkel Pates/Agweek

MINNEAPOLIS - Two North Dakota farm families are plaintiffs in a class action fraud suit against one of the Texas law firms in the Syngenta corn suits, alleging the lawyers duped farmers into filing individual suits rather than joining what would become a $1.51 billion settlement against Syngenta AG.

The Texas lawyers told farmers they would get more out of filing individual suits than joining the class action suit against Syngenta.

Kenneth P. Kellogg, Rachel Kellogg and Kellogg Farms Inc., all of Monango, N.D., and Roland B. Bromley and Bromley Ranch LLC, Drake, N.D., are the named plaintiffs in a suit against Watts Guerra LLP, of San Antonio, and their "joint venture" law firm partners. The Kellogg suit was filed April 24 in U.S. District Court in Minneapolis, alleging "attorney fee fraud scheme" on behalf of more than 57,000 corn growers.

The farmers are represented by Douglas Nill of FarmLaw, who says the Texas lawyers were trying to "double dip" on attorney's fees, with potentially more than half the settlement funds in the original case going to lawyers.

Nill makes a "rough calculation" that if the suit is successful, it could place "as much as $200 million back into the pockets" of farmers who had signed up through the Watts Guerra program.

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The case stems from a class action suit in which farmers filed lawsuits against Syngenta AG involving allegations that Syngenta prematurely introduced and improperly marketed particular varieties of GMO corn seed, known as Viptera and Duracade. Both contained the trait MIR 152. China had not approved the trait and stopped expected corn imports, which the suit says cost U.S. farmers and others money in each of the years since.

On June 23, 2017, the federal multidistrict lawsuit court found a $217.7 million verdict against Syngenta. On Sept. 11, 2017, a class trial started in Hennepin County District Court in Minnesota. But on Sept. 25, 2017, a "global settlement" was reached, with a "common fund" of $1.51 billion. That case hasn't yet set attorney fees, but similar-sized settlements often are set at 10 to 12 percent, while attorneys in that case have requested 30 percent.

In the new, separate Syngenta suit, Nill alleges that the Watts Guerra group intended a "double-dip of attorneys' fees from farmers pockets."

Class members in the national settlement against Syngenta may pay a 10 percent, 12 percent or even 30 percent claim for attorneys fees - that level has not yet been set.

In the Kellogg situation, the family will pay those fees, plus the 40 percent attorney fees they agreed to for the Watts Guerra group. (In the Kelloggs' specific case, 20 percent of their Watts piece would goes to a local joint venture player, Pagel Weikum, PLLP, of Bismarck, N.D.) That means the farmers who filed individually at the recommendation of Watts Guerra will pay more in fees than farmers who never filed suits.

Nill said the clients of Watts Guerra would hypothetically "pay a grotesque" 46 percent to 58 percent in attorney fees for the claim.

Nill is asking the judge to declare that the Watts Guerra retainer agreements are illegal and that the farmers who are owed money in the national class action suit don't owe a separate attorney fee to Watts Guerra and joint venture partners.

Watts Guerra is led by partners, including Mikal C. Watts, who is a named defendant. In a Reuters story , Watts called the suit "frivolous and meritless" and said Nill is "uninformed" about the Syngenta litigation. Nill tells Agweek that Watts' response is "ad hominem," meaning it is a personal attack, and "doesn't say what's frivolous."

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Barrage of ads

Nill writes that farmers were "deceptively solicited" by Watts Guerra "to sign retainer agreements authorizing individual lawsuits against Syngenta with a 40 percent contingent fee from any recovery."

"Farmers were dishonestly told through a barrage of television and internet advertising, direct-mail campaigns and hundreds of in-person 'town hall' community meetings" from Dec. 4, 2014, and into 2017 that a "mass tort ... individual suit" is better than a class action.

Farmers who signed up with the Watts Guerra program were "never informed" that they would already be class members in the the multidistrict litigation in Kansas, and that the judge would be obligated to set "reasonable" attorney fees in the case.

Watts Guerra filed "some 60,000 individual lawsuits" in Minnesota state district courts, because Syngenta Seeds Inc. (predecessor to Syngenta AG) at that time had its U.S. headquarters in Minnesota. Then Watts Guerra negotiated a "group-wide exclusion" from the larger class suit. The Kelloggs and Bromleys were parts of suits filed in Hennepin County in Minnesota in May 2015 and June 2015.

David v. Goliath

Nill, who grew up in the Monango, N.D., area, is no stranger to David and Goliath lawsuits.

From 1997 to 2013, he was the lead counsel in Peterson vs. BASF, a national class action suit that went to the Minnesota Supreme Court five times and the U.S. Supreme Court twice. The suit alleged BASF misbranded Poast and Poast Plus herbicides to fraudulently charge more to specialty crop farmers for the same chemical they were selling to soybean growers. The case ended in a $62 million judgment for farmers.

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For his work on that case, Nill in 2007 was named as the attorney of the year by the "Minnesota Lawyer," a newspaper for lawyers.

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