What are the different steps in the GMO corn lawsuit against Syngenta?

  • Having Hired a Lawyer, A Plaintiff Must Provide Basic Information in Order to Have a Lawsuit Filed.
    To Ensure Your Lawsuit Has Been Timely Filed, You Will Receive a Copy of the Lawsuit Filed for You Within Three Weeks.
  • After Obtaining Documents Demonstrating Bushel Productivity, the Plaintiff will Fill Out and Sign a Plaintiff Fact Sheet, Declaring that All Information Provided Therein is True.
  • A Handful of Bellwether Trials will be Conducted, before the Parties Attempt to Negotiate a Global Settlement of The Claims. If Accepted by a Vast Majority of the Farmers, the Settlement Will be Binding, Syngenta Will Fund the Settlement Amount, and Funds Are Likely to be Allocated to Various Farmers, Depending Upon Individual Bushel Productivity

Lawyers, as member of their state’s bar association, are required to follow certain ethical rules. The first rule is that lawyers should not file a lawsuit for someone before being hired in writing. Consequently, our firm’s Contract of Employment and Consent to Fee Sharing for the Syngenta litigation is on a single page, with seven paragraphs.

Paragraph 1 is the client’s authorization for our firm to represent the client in this litigation against Syngenta, containing an instruction for us to use our best legal judgment in pursuing the claim, absent a specific direction from our client.

Paragraph 2 states that the client will cooperate with us in obtaining the documents needed to prove damages in the case. Namely, for crop years 2011, 2012, 2013 and 2014, we will need contemporaneous documentation of the corn bushel productivity achieved. For example, crop insurance applications, grain elevator year-end summary reports and FSA Form 578s will be needed.

Paragraph 3 sets forth our compensation agreement. We do not charge by the hour. We take care of all the expenses in the case. If we are not successful, the client owes us nothing. However, if the case settles – and only our client can decide to settle – and there is a financial recovery, for every ten dollars collected, the client receives six dollars, and four dollars is allocated to the lawyers, first for the repayment of expenses, and then for the splitting of the remaining amount for attorneys fees in the percentages set forth in the contract.

Paragraph 4 makes clear that the attorneys will pay the expenses out of their 40% share, and the client is guaranteed 60% of the recovery achieved.

Paragraph 5 details that our firm will be representing numerous farmers and grain elevators at once in this litigation against Syngenta. The paragraph informs our potential clients of this fact, and obtains in writing each client’s permission for us to represent many farmers and grain elevators at once.
Paragraph 6 details that our firm is from San Antonio, Texas, and may be sued there for professional negligence, such as failing to timely file the lawsuit.

Paragraph 7 confirms in writing from the client that we have not solicited their case in an improper manner.

At the bottom of the client contract, we have one-quarter of a page reserved for our new client to provide us with the basic information needed to file the lawsuit. First, we need the name of the Plaintiff; i.e., the name of the individual farmer, or the partnership, corporation or trust that is doing the farming. Second, we need the county and state where the corn farming occurred. Third, we need an approximation of the number of corn acres farmed in crop years 2013 and 2014. Finally, we need to know how to get ahold of our new client – name, address, phone number, and if available, email address. All this information will be kept confidential, but will enable us to send quarterly status letters to our clients; we will mail or email a status letter on March 31, June 30, September 30 and December 31, for as long as the litigation continues. This information is mailed to our referral lawyers (who will email it to us) or is emailed directly to our firm.

In order to ensure that our clients’ lawsuits are being timely filed, we have made a commitment to our clients that from the day our firm receives the contract and basic information above, we will file their lawsuit within two weeks. We have an army of firm employees who ensure that this directive is met.

To ensure that the lawsuit is timely filed, our firm’s policy is to write our clients within three weeks, with what we call a “Welcome Packet.” The purpose of the Welcome Packet is three-fold: first, to say “welcome” and to inform our new clients of the specific personnel in our firm whom they should contact with questions and details how to send us the documentation we will need to prove their case; second, to meet the promise we have made to file the lawsuit within two weeks, we send our clients a copy of the lawsuit that we have filed on their behalf; and third, we remind our clients that they need to preserve relevant evidence, and begin collecting for us the crop insurance applications, grain elevator summary sheets and FSA Form 578s for crop years 2011, 2012, 2013 and 2014. Once this information has been collected, we will supply it to Syngenta by filling out a document we will negotiate with Syngenta called a Plaintiffs’ Fact Sheet, wherein we attest to certain information and provide them with documentation of bushel productivity. Much like a crop insurance application, the client will sign the Plaintiff Fact Sheet, thereby verifying that the information contained therein is true and accurate.

At this point, the work for most of our clients is complete. As lawyers, we will work diligently to collect documents from Syngenta, to take numerous depositions of Syngenta employees, to hire expert witnesses, to depose Syngenta’s expert witnesses, and to prepare the cases for trial.

Because of the enormous number of cases to be filed against Syngenta, it is likely that the courts in which those cases are consolidated will order the parties to agree upon a test trial or a “bellwether trial” selection process. Often times, the court will order the plaintiffs’ side to propose five plaintiffs, and the Defendant to propose five plaintiffs, and from that list of ten plaintiffs, the court will blindly choose five plaintiffs’ cases to serve as the test trials. Detailed discovery then will be conducted with respect to those five cases, and test trials will occur. The purpose of these test trials, or bellwether trials, is to provide both sides with a snapshot of what juries think about the allegations made in the cases – whether Syngenta is legally responsible for damages alleged by the Plaintiffs, and if so, what monetary amount is Syngenta responsible for? After a handful of test trials, the parties will have a clear picture of the litigation risks involved for each side should the trials continue.

In consolidated cases involving thousands of similarly-situated plaintiffs, the courts then often order a mediated settlement process, wherein the parties utilize the information gleaned from juries in the various test trials, and formulate a settlement proposal to resolve the cases filed. Typically, the parties will negotiate for many weeks and arrive at a detailed document setting forth a proposed settlement agreement. Because a plaintiff’s lawyer cannot ethically settle his or her clients’ cases without their consent, this proposed settlement is only conditional in nature. A corporate defendant like Syngenta may agree to pay, for example and only hypothetically, a billion dollars, to settle all the cases filed against it; however, it is contractually-obligated to make that payment only if the vast majority of the plaintiffs who have filed suit against it have obligated themselves in writing to accept that amount. Typically, this requires ninety or ninety-five percent (90-95%) of the plaintiffs to agree in writing to accept the proposed settlement before the Defendant is contractually required to fund the settlement. At this time, plaintiffs’ lawyers will write their clients, and/or meet with them in person, to obtain the consent of various plaintiffs to join the settlement. If a participation rate threshold of ninety-five percent (95%) is required, that means that 19 out of every 20 farmers in America who have filed suit against Syngenta will be required to approve of and join the settlement in writing before it is binding. This high participation rate threshold is good for all parties involved; first, it is good for Syngenta because Syngenta’s board of directors will not approve the payment of a large amount, like $1 billion in the example above, unless it satisfies the vast majority of all the claims filed against Syngenta; second, it is good for the corn farmer because the farmer can be sure that a lawyer negotiating such a settlement agreement with Syngenta will not agree to a number with Syngenta that he or she does not believe will be accepted by the vast majority of clients; this keeps the lawyer from agreeing to a settlement with Syngenta that is too low; finally, this is good for the plaintiff’s lawyer, because a settlement agreed to by more than 95% of all clients is one that has achieved consensus, which leads to a large group of happy clients.

Once a settlement is binding, funds will be distributed according to the specific procedures set forth in the Settlement Agreement. However, it is highly likely that individual farmers will receive different amounts, depending upon what their individual corn bushel productivity was in the affected crop years. One the funds are allocated, the client signs a release of Syngenta, dismisses his or her lawsuit, and the funds then are distributed by each client’s own law firm’s trust account. Pursuant to the contract between the client and lawyer, the funds will be distributed to the client in the manner set forth in the contract. In our firm’s contract, the client will net sixty percent (60%) of the recovery, and the remaining forty percent (40%) will first be utilized to repay expenses, and the remaining amount will be divided amongst the lawyers as set forth in the client’s contract of employment. The settlement funds are then mailed or wired directly to the client.

Written by*:
Mikal C. Watts
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
*This information is provided to supply relevant information concerning the GMO corn lawsuit, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. If you have another lawyer in the GMO Corn lawsuit, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.

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