United States District Court, E.D. Missouri, Eastern Division
DON M. DOWNING, et al., Plaintiffs,
GOLDMAN PHIPPS PLLC, et al., Defendants.
MEMORANDUM AND ORDER SUMMARY JUDGMENT AND OTHER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
order rules a number of motions filed by the parties. The
parties' motions and briefs, including exhibits, were in
excess of 25, 000 pages. I have carefully reviewed the
materials filed, but find extended discussion of each motion
unnecessary. As set out below, I am denying most, but not
all, of the motions.
case remains set as the first case to be reached for jury
trial beginning on May 1, 2017, at 8:30 a.m. and the final
pretrial hearing remains set for Wednesday, April 26, 2017 at
dispute about attorneys' fees arising out of the In
re Genetically Modified Rice Litigation, 4:06MD1811CDP
(the Rice MDL), is finally nearing trial. The plaintiffs, who
are lawyers and farmers who provided services and paid
expenses in the Rice MDL, bring claims of unjust enrichment
and quantum meruit against a group of attorneys who
represented plaintiffs in related state-court cases but who
did not contribute to the Common Benefit Fund (CBF)
established in the Rice MDL.
Rice MDL and the related state-court cases, which together
included claims of thousands of farmers and others against
Bayer Cropscience and related entities, were settled for
approximately $750 million after a lengthy litigation process
that included several federal and state trials. Two
settlement agreements were entered. The settlement agreement
referred to as the “Goldman Murray Banks” or
“GMB” settlement is at issue here. Plaintiffs in
this case are seeking contributions from defendant-lawyers
whose clients participated in the GMB settlement.
parties to the federal MDL cases were required to contribute
11% of their settlements and verdicts to a Common Benefit
Fund, but the parties to the state-court cases were not so
required. Despite not being required to contribute to the
CBF, the lawyers to the state-court cases were allowed to
access and use the discovery and other litigation materials
generated in the MDL case. Some state-court lawyers
voluntarily contributed to the CBF; those who are defendants
in this case did not.
of the MDL process, leadership counsel were appointed and
conducted or directed most of the discovery and other
pre-trial preparation, for which they and those working under
their direction were later compensated by distributions from
the CBF. Some of the plaintiffs in this case were appointed
as leadership counsel in the MDL. Some of the defendants in
this case unsuccessfully sought to be appointed to MDL
leadership positions. Some of the defendants here also
unsuccessfully sought to obtain an award of fees from the
CBF, for work they claimed had benefitted the MDL cases.
remaining in this case are Goldman Phipps PLLC, Goldman
Pennebaker & Phipps PC, Martin J. Phipps, Keller
Stolarczyk PLLC (referred to collectively as the Phipps
defendants) and Stephen B. Murray, Sr. and the Murray Law
Firm (referred to collectively as the Murray Law Firm).
# 369: Plaintiffs' Motion for Summary Judgment based
on Issue Preclusion
argue, as they have argued repeatedly in this lawsuit, that I
already decided many of the issues in this case when I
established the MDL Common Benefit Fund and made rulings in
that case related to it. Plaintiffs argue that several of my
orders in the MDL case made findings of fact that are binding
on the parties here. I disagree.
preclusion, formerly referred to as collateral estoppel,
precludes relitigation of the same issue by the same parties.
See, e.g., B&B Hardware, Inc. v. Hargis Indus.,
Inc., 135 S.Ct. 1293 (2015); Simmons v.
O'Brien, 77 F.3d 1093 (8th Cir. 1996). But the
issues must be the same, and “central to the fair
administration of preclusion doctrine is the notion that a
party will be bound only if it had an adequate opportunity or
incentive to obtain a full and fair adjudication in the first
proceeding.” Simmons, 77 F.3d at 1095
(quotation marks omitted).
issues in this case are not the same as the issues considered
in the MDL case, and the parties did not have the same
opportunity or reason to litigate them. The crucial issue
involved in the dispute over the Common Benefit Order, which
was affirmed on appeal, is whether the federal MDL court had
jurisdiction to require non-MDL parties - those who were
parties to the related state-court suits - to contribute to
the Common Benefit Fund. See In re Genetically Modified
Rice Litigation, 764 F.3d 864 (8th Cir. 2014). Although
I did state, in ruling on various motions, that defendants
here had benefited from the work done by the leadership
group, those statements were made in the context of
determining that specific issue, and, as I have told the
parties before, I was using the phrase “unjustly
enriched” in its generic sense and was not making any
finding of future liability.
parties in the MDL case did not have the same full and fair
opportunity to litigate the issues as they have here. They
did not litigate, and I did not decide, whether the plaintiff
class here had conferred any particular benefit on the
defendants named in this suit, or the number of hours
reasonably expended to confer such a benefit, or any of the
other issues raised in plaintiffs' motion. My statements
were not made after the full discovery and litigation,
including presentation of trial evidence, that we will have
in this case. The issues before the court were different, and
my statements did not constitute findings of fact that should
be binding on the parties here. I will deny the motion for
summary judgment based on issue preclusion.
# 299: Motion of Goldman Phipps PLLC et al. to Disqualify
seek to disqualify two of the three law firms who serve as
class representatives in this case. Defendants hired as an
expert witness a legal bill auditor, who opined that there
were inaccuracies in the MDL leadership group's requests
for reimbursement from the MDL Common Benefit Fund.
Defendants argue that these alleged inaccuracies show that
the two law firms cannot be adequate representatives, because
their credibility will be at issue and because they have
conflicts with the remainder of the class.
deny this motion. First, any credibility challenges will be
to the credibility of the individual lawyers who signed the
affidavits, and not to the law firms who are the named class
representatives. One of the lawyers whose credibility the
defendants attack is no longer a member of the law firm who
is the class representative, so attacks on his credibility do
not mean the law firm cannot be an adequate representative.
Second, this case is about legal fees, and there is plenty of
room on all sides to argue about the propriety of all the
lawyers' fees. Third, the defendants' expert witness
made certain assumptions that call the validity of his
opinions into question, and I am sure this will be an issue
at trial. Additionally, the motion does not seek
disqualification of the third class representative law firm,
and so, as a practical matter, disqualifying two of the three
class representatives is unlikely to have much practical
effect. Finally, to the extent defendants argue that the
class representatives have some form of conflict with other
members of the class, that is not a conflict that could
affect the trial - as far as the trial is concerned, all the
plaintiffs share the same goal of obtaining as large a
verdict as possible. If conflicts arise later as to the
division of any award, that is something that can be dealt
with at that time.
# 371, 374, 384: Phipps Defendants' Motion for
Partial Summary Judgment with Respect to Plaintiffs'
Common Benefit Services Claims Relating to Public Records and
Court Proceedings, with Respect to Plaintiffs' Claims for
Quantum Meruit, and with Respect to Plaintiffs' Claims
for Unjust Enrichment
# 388: Plaintiffs' Motion for Partial Summary
Judgment against the Phipps ...