A recent Law 360 story by Jonathan Capriel, “Judge Says Trial Needed in $30M Attorney Fee Dispute,” reports that three Illinois law firms that made an oral agreement to share "fees" will have to go to trial to decide exactly what that means for the $30 million in attorney fees they were awarded for their work in the $1.5 billion Syngenta AG settlement, a Kansas federal judge ruled.  Exactly what the firms meant when they said "they would split 'fees' equally" is a question that can't be answered on summary judgment, said U.S. District Judge John W. Lungstrum, who shot down quick-win bids from both sides in his 18-page order.

As these firms fight over a pot worth tens of millions of dollars, other firms in Kansas and Minnesota that also worked on the original 2014 multidistrict litigation — which secured $1.5 billion in 2018 for a class of roughly 650,000 corn farmers who filed suit against Syngenta AG over genetically modified corn seed — tried to reverse the district court's method for splitting the larger $503 million in attorney fees.  But the Tenth Circuit refused to hold to an en banc hearing to review the lower court's decision.

Two of the Illinois firms at the center of the ongoing Kansas litigation, Crumley Roberts LLP and Burke Harvey LLC, argue that the spoken agreement they made with Heninger Garrison Davis LLC entitles them to two-thirds of the roughly $30 million award, and that Heninger Garrison has in fact breached a contract by not handing it over.  Heninger Garrison argues that in no way did it mean common benefit fees awarded to the class when it said "fees"; rather, it meant "contingent fees."  It further claims it performed the lion's share of the work and has offered to pay "more than the value of the compensable hours" that the two firms worked on the case.

But Judge Lungstrum said that the court can't make a determination at this stage of the litigation as to what "fees" means.  "The court concludes that any decision concerning ambiguity should be based on the totality of the circumstances surrounding the making of the oral agreement, including those relating to the parties' simultaneous agreement to work together to pursue litigation against Syngenta, and thus the court will await the presentation of evidence at trial," Judge Lungstrum wrote.

In 2019, the court divided the attorney fees into four pools, with each receiving a different amount of the fee. Kansas law firms received the bulk of counsel compensation with 49%. Minnesota firms got 23.5%, Illinois firms received 15.5% and about 12% went to private attorneys.  The Illinois pool consisted of the three present firms — Heninger Garrison, Crumley Roberts and Burke Harvey — and their sum ended up being about $29.1 million.

The three firms filed jointly as the "HGD Team" when seeking their compensation, and the court gave the entire amount to Heninger Garrison, which was then supposed to dole out the funds.  Once it became clear that Heninger Garrison didn't intend to give roughly $10 million to each party on the team, Crumley Roberts and Burke Harvey filed suit in state court. Their complaint was later removed to district court.  The two firms sought partial summary judgment on their breach-of-contract claim, arguing that "all fees" cannot be interpreted any other way.

Heninger Garrison sought summary judgment on a number of grounds, including arguing that William Bross of Heninger Garrison did not mean attorney fees when he orally agreed to split fees with Brian L. Kinsley of Crumley Roberts and Todd Harvey of Burke Harvey.  But even if the two did believe the agreement included counsel compensation, the amount they would receive "is so disproportionate to the work they performed that it would be an unreasonable fee and thus, unenforceable," Heninger Garrison said.

"Enforcing the agreement would thus pay plaintiffs nearly $20 million for a few hundred hours of common benefit work," Heninger Garrison said in its summary judgment motion.  The firms "never expected to receive that money.  Mr. Harvey conceded [Burke Harvey] was not entitled to 1/3 of the common benefit fee, 'far from it.'  And Mr. Kinsley conceded that most of [Crumley Roberts'] work was not compensable and did not benefit the class."

But the judge said he couldn't get past the broad use of the word "fees" in the agreement.  "Not only does the use of the word 'fees' in the agreement without limiting language weigh against Heninger Garrison's interpretation, the fact that the parties submitted a joint application … could suggest that the parties had agreed to divide any resulting award on some basis other than the relative common benefit hours included in the application, as the parties could simply have submitted separate applications if they were to be compensated only according to those hours," the judge said