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Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF KANSAS

In re Syngenta AG MIR162 )
Corn Litigation ) MDL No: 2591
)
) Case No. 14-md-2591-JWL-JPO
This Document Relates to: )
All Cases )
)

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO


ENJOIN EX PARTE SOLICITATIONS OF CLASS MEMBERS
Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 2 of 34

TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................... 1
I. FACTUAL BACKGROUND ............................................................................................ 4
A. The Phipps Blocs False and Misleading Solicitations .......................................... 4
B. The Johnson Fields Groups False and Misleading Solicitations .......................... 5
C. Phipps Prior Unethical Client Solicitation Efforts ............................................. 10
II. THE COURT SHOULD ENJOIN AND ORDER CURATIVE MEASURES TO
REMEDY THE IMPROPER SOLICITATIONS ............................................................ 12
A. Applicable Law .................................................................................................... 13
1. Governing Court and Ethical Rules and Judicial Precedent .................... 13
2. Fed. R. Civ. P. 23(d) and the Gulf Oil Co. Standard ............................... 15
B. The Phipps Bloc and Johnson Fields Group Have Violated Applicable Ethical
Rules and Fed. R. Civ. P. 23 ................................................................................ 17
1. KRPC 4.2 ................................................................................................. 17
2. KRPC 7.1(a)............................................................................................. 21
3. KRPC 7.3(b)(2) & 7.3(c) ......................................................................... 23
4. KRPC 8.4 ................................................................................................. 24
5. Fed. R. Civ. P. 23 ..................................................................................... 24
III. REQUESTED RELIEF.................................................................................................... 25
IV. CONCLUSION ................................................................................................................ 27

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TABLE OF AUTHORITIES

Cases

B.K.B. v. Maui Police Dept,


276 F.3d 1091 (9th Cir. 2002) ................................................................................................. 21

Berkson v. Gogo LLC,


97 F. Supp. 3d 359 (E.D.N.Y. 2015) ....................................................................................... 18

Biocore Med. Techs., Inc. v. Khosrowshahi,


181 F.R.D. 660 (D. Kan. 1998)................................................................................................ 14

Blanchard v. EdgeMark Fin. Corp.,


175 F.R.D. 293 (N.D. Ill. 1997) ............................................................................................... 20

Chambers v. NASCO, Inc.,


501 U.S. 32 (1991) ................................................................................................................... 14

Cole v. Ruidoso Municipal,


Schs., 43 F.3d 1373 (10th Cir. 1994) ....................................................................................... 14

Dial Corp. v. News Corp.,


No. 13-CV-6802 (WHP), 2015 WL 9256930 (S.D.N.Y. Nov. 16, 2015) ............................... 20

Digital Ally, Inc. v. Z3 Tech., LLC,


No. 09-2292-KGS, 2010 WL 11489136 (D. Kan. Feb. 3, 2010)............................................. 14

Folks v. State Farm Mut. Ins. Co.,


299 F. Appx 748 (10th Cir. 2008) .......................................................................................... 20

Fulco v. Continental Cablevision Inc.,


789 F. Supp. 4547 (D. Mass. 1992) ......................................................................................... 20

Gortat v. Capala Bros.,


No. 07-CV-3629 (ILG) (SMG), 2010 WL 1879922 (E.D.N.Y. May 10, 2010) ............... 20, 28

Gottstein v. Natl Assn for the Self Employed,


186 F.R.D. 654 (D. Kan. 1999)................................................................................................ 17

Graham v. Wyeth Labs.,


906 F.2d 1419 (10th Cir. 1990) ............................................................................................... 14

Gulf Oil Co. v. Bernard,


452 U.S. 89 (1981) ................................................................................................................... 17

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Hammond v. City of Junction City, Kan.,


167 F. Supp. 2d 1271 (D. Kan. 2001) .................................................................... 14, 18, 19, 27

Harlow v. Sprint Nextel Corp.,


No. 08-2222-KHV-DJW, 2012 WL 646003 (D. Kan. Feb. 28, 2012) .................................... 19

Hernandez v. Vitamin Shoppe Indus., Inc.,


174 Cal. App. 4th 1441, 95 Cal. Rptr. 3d 734 (2009).............................................................. 20

In re Currency Conversion Fee Antitrust Litig.,


361 F. Supp. 2d 237 (S.D.N.Y. 2005)................................................................................ 17, 25

In re Garcia,
282 Kan. 721, 147 P.3d 132 (2006) ......................................................................................... 22

In re Genetically Modified Rice Litig.,


No. 4:06 MD 1811 CDP, 2012 WL 6085153 (E.D. Mo. Nov. 2, 2012) ................................ 11

In re Kruckenberg,
No. 94-4125-SAC, 1994 WL 732527 (D. Kan. Nov. 30, 1994) .............................................. 20

In re McKesson HBOC, Inc. Secs. Litig.,


126 F. Supp. 2d 1239 (N.D. Cal. 2000) ................................................................................... 22

In re News Am. Pub., Inc.,


974 S.W.2d 97 (Tex. App. 1998) ............................................................................................. 21

In re Prudential Ins. Co. of Am. Sales Practices Litig.,


911 F. Supp. 148 (D.N.J. 1995) ............................................................................................... 15

In re Sch. Asbestos Litig.,


842 F.2d 671 (3d Cir. 1988)..................................................................................................... 17

In re Syngenta AG MIR162 Corn Litig.,


No. 14-MD-2591-JWL, 2016 WL 5371856 (D. Kan. Sept. 26, 2016) .................................... 19

In re Syngenta AG MIR162 Corn Litig.,


65 F. Supp. 3d 1401 (J.P.M.L. 2014)................................................................................... 7, 12

Jackson v. Bloomberg L.P.,


No. 13-CV-2001 (JPO), 2015 WL 1822695 (S.D.N.Y. Apr. 22, 2015) .................................. 20

Kirola v. City & Cty. of San Francisco, No. C,


07-03685 SBA, 2010 WL 3505041 (N.D. Cal. Sept. 7, 2010) ................................................ 20

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Marten v. Yellow Freight Sys., Inc.,


No. 96-2013-GTV, 1996 WL 568840 (D. Kan. Sept. 5, 1996) ............................................... 14

McWilliams v. Advanced Recovery Sys., Inc.,


176 F. Supp. 3d 635 (S.D. Miss. 2016)........................................................................ 21, 22, 26

Michaels v. Woodland,
988 F. Supp. 468 (D.N.J. 1997) ............................................................................................... 18

Midland Funding, LLC v. Brent,


No. 3:08 CV 1434, 2011 WL 1882507 (N.D. Ill. May 17, 2011) ........................................... 22

Montgomery v. Aetna Plywood, Inc.,


No. 95 C 3193, 1996 WL 189347 (N.D. Ill. Apr. 16, 1996).................................................... 20

Palumbo v. Tele-Commcns, Inc.,


157 F.R.D. 129 (D.D.C. 1994)................................................................................................. 20

Redd v. Shell Oil Co.,


518 F.2d 311 (10th Cir. 1975) ................................................................................................. 14

Rouhib v. Zurbrick,
67 F.2d 570 (6th Cir. 1933) ..................................................................................................... 21

Scott v. Chipotle Mexican Grill, Inc.,


2014 WL 4852063 (S.D.N.Y. Sept. 29, 2014)......................................................................... 18

State v. Regier,
228 Kan. 746, 621 P.2d 431 (1980) ......................................................................................... 20

State v. Roers,
520 N.W.2d 752 (Minn. Ct. App. 1994) .................................................................................. 21

Velez v. Novartis Pharm. Corp.,


No. 04 Civ. 9194 (CM), 2010 WL 339098 (S.D.N.Y. Jan. 26, 2010) ..................................... 25

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,


471 U.S. 626 (1985) ................................................................................................................. 21

Other Authorities

6 William B. Rubenstein et al., Newberg on Class Actions 19:2 (5th ed. rev. 2016) ............... 23

Annotated Manual for Complex Litigation, Fourth 21.33 ........................................................ 23

Restatement (Third) of the Law Governing Lawyers 99 ........................................................... 23

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INTRODUCTION

Court-appointed Class Counsel (Class Counsel) respectfully submit this memorandum

of law in support of their motion for an order enjoining the law firms of Phipps, Anderson &

Deacon LLP; Clark, Love & Hutson GP; Meyers & Flowers; and the Pulaski Law Firm PLLC

(collectively, the Phipps Bloc), and the law firms of Johnson Becker, PLLC and Fields Law

Firm, LTD (collectively, the Johnson Fields Group), from making unauthorized and unethical

solicitations of the members of the Classes that this Court certified on September 26, 2016 and

who are therefore already represented by Class Counsel. These improper solicitations have even

extended to named Plaintiffs who are Class Representatives. The Phipps Bloc and the Johnson

Fields Group are conducting an aggressive, widespread campaign to sign up Class Members and

have them opt out of the Classes. As discussed below, the Phipps Bloc and the Johnson Fields

Group have:

Improperly, and under false pretenses, solicited clients who are


already represented by other counsel in this litigation;

Failed to acknowledge to Class Members that they are already


represented by other counsel, and misled Class Members to believe
that they do not already have legal representation;

Attempted to induce represented Class Members to execute


retainer agreements that would substitute Phipps, Anderson &
Deacon LLP; Clark, Love & Hutson GP; Meyers & Flowers; and
the Pulaski Law Firm PLLC, or Johnson Becker, PLLC, and the
Fields Law Firm, LTD, in place of Class Members already
existing Class Counsel and in many cases their individual counsel
whom they had retained prior to class certification and failed to
inform them that entering into the retainer agreements would result
in such substitution for the Class Members already existing
counsel.

In violation of Kansas ethical rules, which govern the conduct of attorneys before this

Court, and this Courts Rules, the Phipps Bloc and the Johnson Fields Group have engaged in this

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improper and unethical conduct as part of a brazen, ongoing, and concerted effort to steal lawyers

clients and undermine this Courts September 26, 2016 class certification Order (ECF No. 2547),

which had appointed Class Counsel to represent all members of the nine certified Classes (the

eight State Classes and the Nationwide Corn Producers Class asserting a Lanham Act claim).

The Phipps Bloc and the Johnson Fields Group have engaged in a full-court press of unethical and

misleading solicitations of already-represented Class Members, including through direct mailings,

advertisements on various websites operated by members of the Phipps Bloc and the Johnson

Fields Group. In addition, the Phipps Bloc has scheduled and held dozens of event meetings

with Class Members across the Midwest (including in states in which many Class Members

reside), all as part of an effort to poach already-represented Class Members for themselves. The

Phipps Blocs and Johnson Field Groups solicitations and advertisements convey the misleading

impression to Class Members that they are not already represented in this litigation.

The actions of Martin J. Phipps a partner at Phipps, Anderson & Deacon LLP are

particularly disturbing because they are the latest in what is a demonstrated pattern of similar

misconduct. Martin Phipps previously engaged in, and faced judicial corrective measures for,

the same type of conduct in similar MDL litigation. In 2011, Judge Perry chastised Phipps for

having sent misleading solicitation letters regarding a settlement to plaintiff rice farmers who

were already represented by other counsel, and found that he had violated Arkansas, Missouri,

and Texas Professional Rules of Conduct 4.1, 4.2, and 4.3 this after she had reprimanded him

just two years earlier for having attempted to solicit other firms client rice farmers. Incredibly,

Mr. Phipps still has not learned his lesson. Instead, aided by his allies among the other members

of the Phipps Bloc, Phipps has doubled-down on the same type of misconduct in this case. It is

now evident that the real reason why Phipps sought a more generous opt-out deadline for Class

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Members than what Class Counsel had initially proposed was not the need for him to have ample

time to reach out and advise his own clients concerning whether to stay in or opt out of the Classes

but, rather, to go out and poach absent Class Members. This misconduct undermines this

Courts certification Order and frustrates the efficiencies that class-wide adjudication is designed

to promote.

In order to remedy the damage that the Phipps Bloc and the Johnson Fields Group have

caused (and threaten to continue to cause) through their misleading communications and

improper solicitations and advertising efforts, Class Counsel seeks an Order that, among other

things, enjoins the members of the Phipps Bloc and the Johnson Fields Group from

communicating with let alone soliciting or advertising to Class Members with whom they did

not have an established attorney-client relationship as of September 26, 2016. In addition, Class

Counsel seek corrective measures, including the transmittal of a curative letter that remedies the

unethical conduct of the Phipps Bloc and the Johnson Fields Group, and the invalidation of any

retainers or opt-outs of Members of the Classes in this litigation who had not already retained a

member of the Phipps Bloc or the Johnson Fields Group as of September 26, 2016. The latter

measure is particularly warranted here given the aggravating factor of a prior reprimand by

another court for similar conduct in a similar case, the presence of a dishonest or selfish and

pecuniary motive, and experience and sophistication in the practice of class and mass action law.

With numerous other matters pending before the Court in this case, Class Counsel are

reluctant to divert their and the Courts focus to the conduct of the Phipps Bloc and the Johnson

Fields Group. But to carry out their fiduciary duties of protecting the rights of Class Members,

and their obligations as officers of the Court to foster adherence to the applicable ethical rules,

Class Counsel have a responsibility to bring this motion.

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I. FACTUAL BACKGROUND

Class Counsel has learned that Phipps and other members of the Phipps Bloc, and the

Johnson Fields Group, have been improperly contacting Class Representatives and absent Class

Members (who are already represented by counsel) and soliciting them to retain either Phipps

firm or one of the other members of the Phipps Bloc, or the Johnson Fields Group, as their counsel

to pursue claims against the Syngenta Defendants in connection with the MIR162 contamination.

Declaration of Don M. Downing, dated Feb. 17, 2017 (Downing Decl.) 3; Declaration of

Michelle Donarski, dated Feb. 16, 2017, 3-11. The communications and advertisements are

misleading in that they fail to advise the Class Members of their right to consult with their existing

counsel in this litigation, or that entering into the retainer agreement would effectively substitute

one or more members of the Phipps Bloc or the Johnson Fields Group as the legal representative

for Court-appointed Class Counsel (or, where applicable, their individual counsel whom they had

retained prior to class certification). The mailings are designed to (a) have absent Class

Members sign up with Phipps firm or one of his cohorts as their counsel, or the Johnson Fields

Group, and then (b) have the Class Members opt out of the respective Class(es) to which they

belong.

A. THE PHIPPS BLOCS FALSE AND MISLEADING SOLICITATIONS

The Phipps Blocs forms of solicitations have involved the following:

packages mailed or delivered to Class Members that bear (1) the


names of Phipps law firm and the law firm of Meyers & Flowers;
(2) the name of Phipps website JusticeForFarmers.com (in
pronounced, white lettering); (3) the messages Fight Farmers
Fight! (in bold white capitalized letters) and You arent like any
other farmer. We believe we arent like any other law firm.; (4)
the address of Phipps law firm in San Antonio, Texas; (5) a
telephone number, 855-688-SEED (which is the telephone number
of the Pulaski Law Firm PLLC); and (6) a logo consisting of a
cartoon of an angry ear of corn.

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Promotional gifts consisting of baseball caps, inside the packages,


in colors of blaze orange or camouflage, along with the
embroidered message of Fight Farmers Fight! and the name of
Phipps law firm sewn onto the back of the caps.

Warnings advising recipients that it is TIME TO DECIDE and


that a Class Action Has Been Certified, and admonishing them to
[c]hoose your own lawyers before they are chosen for you! The
latter statement in particular falsely suggests to recipients that they
do not already have legal representation when the fact is that they
do.

Proposed, blank retainer agreements, contained inside the gift


packages, which set forth a contingency fee arrangement, and
which list as counsel Phipps Anderson Deacon, LLP; Clark, Love
& Hutson GP; Meyers & Flowers; and the Pulaski Law Firm
PLLC.

Town hall style events scheduled in various locations in Class


Members states, including Illinois, Iowa, and Ohio, at which Class
Members are not informed that they are already represented by
Class Counsel or that they should first consult with them before
entertaining communications from the Phipps Bloc, and that
Syngenta desires resolution through a class action because it will
result in a better deal for Syngenta.

A recreational vehicle used to travel to the town hall meetings


scheduled by Phipps across the Midwest and that is emblazoned
along its entire side with the slogan Fight Farmers Fight, a
caricature of an angry ear of corn, and the name of Phipps law firm
and telephone number.

Downing Decl., Exs. A-G; Declaration of Dennis Mahorney, dated Feb. 16, 2017, 8-9 (copy

annexed as Exhibit Q to Downing Decl.).

B. THE JOHNSON FIELDS GROUPS FALSE AND MISLEADING SOLICITATIONS

The Johnson Fields Groups solicitations have included the following:

a packet of information urgently saying in bold, capitalized letters


that time is running out to opt-out of the MIR 162 Corn
Litigation by the April 1, 2017 opt-out date and [to] bring an
individual corn action.

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language on the solicitation material suggesting it is endorsed by and/or sent by


the Corn Growers Claim Center, and providing that the farmer can start your
claim by [v]isit[ing] us online at a web address for this organization,
www.CornGrowersClaimCenter.com. The Corn Growers Claim Center is
operated by the Johnson Field Group, but that fact that is not disclosed in the
information sent to farmers.

Donarski Decl. 5, 8 & Exs. A-B.1

Phipps Twitter account online, https://twitter.com/phippsadllp?ref_src=twsrc%5Etfw, is

replete with examples of such solicitations to Class Members, and details a long list of road

shows and town hall-style meetings that he has been conducting and is scheduled to conduct in

the coming weeks all centered around the April 1, 2017 opt-out deadline. Downing Decl., Ex.

F.

Several Class Representatives have been solicited by the Phipps Bloc. Among these is

Plaintiff Richard R. Oswald, a representative of the Missouri State Corn Producers Class. See

ECF Nos. 2531 ( 11, 47) & 2164, at 4-5 n.2, 75. On or about January 19, 2017, Oswald who

has been represented by Class Counsel since September 26, 2016, and even prior to that by his

own individual counsel (Speer Law Firm, P.A. and Plaintiffs Executive Committee member

Seeger Weiss LLP) who had filed his constituent action in the Western District of Missouri,

Bentlage v. Syngenta Corp., that was transferred to this MDL Court pursuant to CTO No. 1 (ECF

No. 199) and assigned docket no. 15-cv-2033 in this District) received written solicitation

materials from the Phipps Bloc that concerned Syngenta AG MIR162 Corn Litigation. Downing

Decl., Ex. L (Declaration of Richard R. Oswald, dated Jan. 31, 2017, 2-5). In those materials,

1
Based on the information that Class Counsel have thus far received, the Johnson Fields Groups
solicitations have been targeted at corn farmers in North Dakota. See Donarski Decl. 3. Although this
Court has not yet certified a North Dakota state class, corn producers in that state are members of the
Nationwide Corn Producers Class that asserts a claim under the Lanham Act. See ECF No. 2547, at
30-31.

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the Phipps Bloc advised Plaintiff Oswald to opt out of the Class that this Court certified, and to

hire the Phipps Bloc to represent him.

Dale Hadden of Hadden Farms a representative of the Illinois State Corn Producers

Class (see ECF Nos. 2531 ( 9, 22) & 2164, at 4-5 n.2, 71), who is represented by Class Counsel

since September 26, 2016, and had been represented by his own attorneys since before that date

(who had filed an action that was one of the original cases that was centralized in this Court as part

of the MDL, see In re Syngenta AG MIR162 Corn Litig., 65 F. Supp. 3d 1401, 1402 (J.P.M.L.

2014) (Schedule A)) received similar solicitation materials from the Phipps Bloc. Downing

Decl., Ex. M (Declaration of Dale Hadden, dated Jan. 31, 2017, 2-5). So did Bret Kendrick

whose partnership 5 Star Farms is a class representative of the Kansas State Corn Producers Class

(see ECF Nos. 2531 ( 30) & ECF no. 2164, at 4-5 n.2). He is represented by Class Counsel

since September 26, 2016, and by his own attorneys since before that date, who had filed case no.

14-cv-2571 directly in this District and he likewise received similar solicitation materials from

the Phipps Bloc. Downing Decl., Ex. N (Declaration of Bret Kendrick, dated Jan. 31, 2017,

2-5).

Another Class Representative who has been solicited by the Phipps Bloc is Alan Pedersen

who, with his wife LaRae Pedersen, does business as Pedersen Farms and is a class representative

of the Iowa State Corn Producers Class (see ECF Nos. 2531 ( 4, 27) & ECF no. 2164, at 4 n.2).

He is represented by Class Counsel since September 26, 2016, and by his own attorneys since

before that date, having been a plaintiff in Wilson Farm Inc. v. Syngenta AG, No.

14-cv-1908-RWS (E.D. Mo.), which was transferred to this District pursuant to CTO No. 1 and

assigned docket no. 15-cv-2032-JWL. He likewise received similar solicitation materials from

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the Phipps Bloc. Downing Decl. 19, Ex. O (Declaration of Alan Pedersen, dated Feb. 8, 2017,

2-5, with attachments).

Among the absent Class Members who have been solicited is Keith Jenkins, who had been

represented by individual counsel prior to the Courts class certification ruling. Downing Decl.,

20, Ex. P (Declaration of Keith Jenkins, dated Feb. 3, 2017, 3-5). Mr. Jenkins farms as J & P

Farms and is an absent Class Member of the Nationwide Corn Producers Class. He was a

plaintiff in the action entitled Barksdale Farms v. Syngenta, No. 4:16-cv-00194 (N.D. Miss.),

which was originally filed in the Northern District of Mississippi and transferred to this MDL

Court pursuant to CTO-72 (ECF No. 2584 [Oct. 12, 2016]) and assigned docket no.

16-cv-2712-JWL (D. Kan.).2

The improper communications to represented parties by the Phipps Bloc and the Johnson

Fields Group are by no means limited to direct solicitations. Phipps and the Johnson Fields

Group have aggressively and coercively advertised on various websites, including

http://phippsllp.com; http://phippsandersondeacon.com/syngenta-litigation;

http://justiceforfarmers.com, and http://www.corngrowersclaimcenter.com/. The

advertisements state or urge:

(i) Phipps was responsible for the $750 million dollar settlement in In re Genetically
Modified Rice Litig., No. 4:06 MD 1811 CDP (E.D. Mo.), and for the largest
settlement in U.S. history for Texas, Arkansas, Louisiana, Mississippi, and
Missouri long grain rice farmers.

2
Other absent Class Members who are already represented by counsel have received the Phipps Blocs
materials and have attended meetings in which the Phipps Bloc seeks to solicit Class Members through its
misleading statements. See Mahorney Decl. 3, 6-9; Declaration of Troy R. Tilton, dated Feb. 16, 2016
(copy annexed to Downing Decl. as Ex. R) 3, 6-9.

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(ii) IMPORTANT CLASS ACTION DEADLINE APPROACHING

You need to act soon; otherwise you may be lumped into a class action with fewer
options. Court deadlines are fast approaching. The lawyers that want this case
to be a class action filed their motion back on June 15, 2016. Then, U.S. District
Court held a hearing on September 13, 2016, to determine how the case would
proceed. The court has subsequently ruled that the case against Syngenta will
move forward as a class action. Phipps Anderson Deacon believes individual
representation is the best option for farmers. No two farms are exactly the same.
Legal representation should not be the same for everyone either. Our team will
fight for your farm with integrity, honesty and character.

(iii) Class Members are entitled to representation by his law firm with messages like
WHY YOU? (capitals and boldface in original), Let us represent you, and
invitations to sign up for representation, and to opt-out by stating We believe
this is an individual case, not [a] class action, and the cases involving farmers
should be tried in farming towns . . . not large cities.

(iv) Various events will be held on the road in order to allow Phipps to operate on
a face to face relationship as agricultural attorneys.

(v) [T]ime is running out for you [i.e., Class Members] to make a decision . . . this
will limit your options if you do not sign up soon for individual representation by
our experienced agricultural attorneys.

(vi) Signing up with Phipps is not difficult. Just call 855.688.SEED and ask to speak
with a Syngenta case team. Dont be lumped into a class action where decisions
are made for you by attorneys you dont know!

(vii) Do not wait. The sooner you submit your claim [with the Johnson Fields Group],
the more time we have to build a strong case for you.

Downing Decl. 3, Ex. G (emphasis added); Donarski Decl. 9, Ex. B.

Furthermore, although one of Phipps advertisements that accompanies its solicitations

contains a statement in fine print at the very end stating that if you are already represented by a

lawyer then please disregard as we cannot assist you if you already have representation,

Downing Decl., Ex. C, nothing in Phipps or Johnson Fields Groups advertisements or

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solicitation materials clarifies that Class Members are already represented by counsel. Nor do

those materials and website solicitations make clear that Class Members should consult counsel

before considering the solicitations materials or retainer agreements.

The Phipps Blocs and Johnson Fields Groups solicitations and retainer agreements are

also omissively misleading. For example, nowhere in the retainer agreements or in the

solicitation materials or advertisements does the Phipps Bloc or Johnson Fields Group ever

explain the implications and ramifications of opting out of the Class.

C. PHIPPS PRIOR UNETHICAL CLIENT SOLICITATION EFFORTS

This is not the first time that Martin Phipps has engaged in unethical behavior with regard

to client contact in aggregate litigation. In In re Genetically Modified Rice Litigation, No. 4:06

MD 1811 (CDP) (E.D. Mo.) (GMO Rice Litigation), co-lead counsel filed a motion for a

protective order after learning that Phipps and his co-counsel were improperly soliciting plaintiff

rice farmers who were already clients of other law firms. In their motion, co-lead counsel

detailed Phipps and his co-counsels false and misleading statements as well as their

inappropriate use of confidential documents in conjunction with their efforts to solicit represented

parties. Although the lead counsel was ultimately able to reach an agreement with Phipps,

whereby he and his firm agreed to remedy their false and misleading statements made to the

represented rice farmers, the court nevertheless reprimanded Phipps for his conduct.

Specifically at an April 16, 2009 status conference, the court stated, in relevant part, as follows

with respect to the compromise order proposed by the parties to correct Phipps unethical and

improper conduct:

THE COURT: I think this is an appropriate order, and I think it is fairly -- I


think it goes a long way to remedy the violation that was done in the sense of the
improper solicitation in violation of the ethical rules.
....

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THE COURT: . . . . Mr. Phipps, if I hear of any further violations of this


Courts orders by you, we will have a hearing, we will dedicate the whole hearing
to that so youll get all the due process you need to present any facts that you think
you should be presenting to defend yourself if there are any further accused
violations of the Courts orders. I hope that doesnt happen, and I am telling you
that Im expecting that not to happen. Do you understand?

MR. PHIPPS: Absolutely, yes.

Downing Decl., Ex. H (Tr. of Apr. 16, 2009 status conference at 101:9-103:14).

Not long thereafter, however, Phipps was back to poaching other firms clients. In June

2011, shortly before the global settlement of the market loss claims in the GMO Rice Litigation

was executed by the parties, lead counsel learned that Phipps was improperly sending written

solicitations to landlords of rice farmers, who were already represented by other counsel, and

misinforming them about the settlement, which was not yet final, and their obligations and

responsibilities. See Downing Decl., Ex. J, at 3-4. The solicitations coercively urged these

represented clients to sign releases of claims and consent forms, falsely asserting that doing so

was necessary in order to participate in the settlement. Id. Lead counsel demanded that Phipps

cease all improper solicitations, which Phipps rejected. Id. at 6-7.

Lead counsel sought judicial intervention in the matter. At a hearing on the matter, Judge

Perry found that Mr. Phipps had sent false and misleading solicitation letters regarding the

settlement to clients who were already represented by other counsel. See Downing Decl., Ex. K

(Tr. at 111). The court not only admonished him for engaging in conduct addressed by the

courts previous 2009 order on the same subject (improper solicitation), but also found that his

conduct had violated Arkansas, Missouri, and Texas Professional Rules of Conduct 4.1, 4.2, and

4.3. See Downing Decl., Ex. K (Tr. at 112, 113-14 (In re Genetically Modified Rice Litig., No.

4:06 MD 1811 (CDP) (E.D. Mo. Order filed July 20, 2011) (ECF No. 4257)); see In re

Genetically Modified Rice Litig., No. 4:06 MD 1811 CDP, 2012 WL 6085153, at *11 n.3 (E.D.

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Mo. Nov. 2, 2012) (Special Masters Report & Recommendation, noting that the Court [had]

found that Martin Phipps violated Rules of Professional Conduct 4.1, 4.2 and 4.3 by providing

false and misleading information to landlords who were either unrepresented or represented by

other counsel and remedial actions were ordered), report and recommendation adopted, 2012

WL 6085141 (Dec. 6, 2012), affd, 764 F.3d 864 (8th Cir. 2014). The district court determined

that Phipps conduct had caused injury to the affected clients of other lawyers and interfered with

the administration of justice, and it ordered various corrective measures, including disclosure of

the identities of those whom Phipps had improperly solicited, the sending of a curative letter and

advertisement correcting his misstatements, and payment of the costs of such corrective measures.

Downing Decl., Ex. K (Tr. at 114-17).

In short, Phipps brazen behavior concerning the solicitation of individuals already

represented by other counsel, including Court-appointed Class Counsel here, is demonstrably

recidivist. Once again, it necessitates judicial intervention.

II. THE COURT SHOULD ENJOIN AND ORDER CURATIVE MEASURES TO


REMEDY THE IMPROPER SOLICITATIONS

The above-described solicitations and advertisements by the Phipps Bloc and the Johnson

Fields Group are highly improper and violate longstanding ethical rules governing attorney

conduct. The Court should grant Class Counsel both retroactive corrective relief relating to the

improper communications that have already made to Class Members, and prospective relief to

prevent similar misconduct in the future. Indeed, in light of the Courts class certification order,

the Phipps Blocs or Johnson Fields Groups retention, on or after September 26, 2016, by any

member of one or more of the Classes should be deemed presumptively improper and declared

null and void. In order for the Phipps Bloc and the Johnson Fields Group to demonstrate that a

proper attorney-client relationship was established, they should be required to demonstrate, by

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clear and convincing evidence, that those individuals affirmatively and independently reached out

to these attorneys about legal representation prior to any solicitation that they received from them

or advertising they were exposed to.

A. APPLICABLE LAW

1. Governing Court and Ethical Rules and Judicial Precedent

It is well established in the Tenth Circuit that the control of attorneys conduct in trial

litigation is within the supervisory powers of the trial judge, and is thus a matter of judicial

discretion. Cole v. Ruidoso Municipal Schs., 43 F.3d 1373, 1383 (10th Cir. 1994) (quoting

Redd v. Shell Oil Co., 518 F.2d 311, 314 (10th Cir. 1975)); see also D. Kan. Local Rule 83.6.12

(describing Courts inherent power to regulate practice and discipline of attorneys); Chambers v.

NASCO, Inc., 501 U.S. 32, 43 (1991) ([A] federal court has the power to . . . discipline attorneys

who appear before it.).

Pursuant to District of Kansas Local Rule 83.6.1(a), the Model Rules of Professional

Conduct (Model Rules) as adopted by the Supreme Court of Kansas govern the standards of

conduct for attorneys practicing in this Court. Digital Ally, Inc. v. Z3 Tech., LLC, No.

09-2292-KGS, 2010 WL 11489136, at *1 (D. Kan. Feb. 3, 2010); Marten v. Yellow Freight Sys.,

Inc., No. 96-2013-GTV, 1996 WL 568840, at *2 (D. Kan. Sept. 5, 1996). The Kansas Supreme

Court has adopted the Model Rules. Kan. Ct. R. Ann. Rule 226; Kan. Rules of Profl Conduct

(KRPC) 1.1. See Hammond v. City of Junction City, Kan., 167 F. Supp. 2d 1271, 1281-82 (D.

Kan. 2001), affd, No. 00-2146-JWL, 2002 WL 169370, at *1 (D. Kan. Jan. 23, 2002), affd, 126

F. Appx 886, 888 (10th Cir. 2005). Thus, the Model Rules, and Kansas case law construing

them, control this action. Marten, 1996 WL 568840, at *2 (citing Graham v. Wyeth Labs., 906

13
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F.2d 1419, 1422-23 (10th Cir. 1990)).3 Moreover, KRPC 5.5(a), entitled Unauthorized Practice

of Law: Multijurisdictional Practice of Law, provides that [a] lawyer shall not practice law in a

jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist

another in doing so.4

As to the specific misconduct at issue here, the Kansas Rules of Professional Conduct

prohibit a lawyer representing a client from communicating regarding the subject matter of the

action with a person the lawyers knows to be represented by another lawyer in the matter. In

particular, KRPC 4.2, entitled Communication With Person Represented By Counsel, provides:

In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order.

KRPC 4.2.

In addition, KRPC 7.1, entitled Communications Concerning A Lawyers Services,

provides in part:

A lawyer shall not make a false or misleading communication about the lawyer or
the lawyers services. A communication is false or misleading if it:

3
Accord Biocore Med. Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660, 671 (D. Kan. 1998) (Defendants
incorrectly argue that federal law controls the ethical standards of attorneys in federal courts, but the law is
clear that federal district courts apply the state law of the state in which they sit. . . . Kansas law provides
support on both sides of the issue. Attorneys who practice in Kansas courts (state or federal) have a duty to
apply appropriate Kansas law, and cannot simply choose the position taken by the majority of states.)
(internal citation omitted), on reconsideration, 1998 WL 919126 (Nov. 6, 1998), affd, 348 F.3d 1163
(10th Cir. 2003).
4
Federal courts have also confirmed that, in multidistrict litigation, the ethical rules of the forum will also
govern, under Model Rule 8.5, the conduct of counsel committed outside the jurisdiction of the court. See
In re Prudential Ins. Co. of Am. Sales Practices Litig., 911 F. Supp. 148, 150-51 (D.N.J. 1995) (New
Jersey ethical rules governed conduct of attorneys in multidistrict litigation centralized in District of New
Jersey, including conduct committed outside jurisdiction of court, pursuant to Model Rule 8.5). Kansas
has adopted Model Rule 8.5. See KRPC 8.5 (A lawyer admitted to practice in this jurisdiction is subject
to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.); see also Jud.
Panel on Multidist. Litig. R. 2.1(c) (Any attorney of record in any action transferred under Section 1407
may continue to represent his or her client in any district court of the United States to which such action is
transferred. Parties are not required to obtain local counsel.).

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(a) contains a material misrepresentation of fact or law, or omits a fact necessary


to make the statement considered as a whole not materially misleading;
KRPC 7.1.
In addition, KRPC 7.3(b)(2) states, in relevant part:
(b) A lawyer shall not solicit professional employment by written, recorded or
electronic communication or by in-person . . . contact . . . if:
.....

(2) the solicitation involves coercion . . . .

KRPC 7.1(b)(2).

Moreover, KRPC 8.4, entitled Misconduct, provides in part:


It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the rules of professional misconduct . . . .
....
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
KRPC 8.4.

2. Fed. R. Civ. P. 23(d) and the Gulf Oil Co. Standard

Where, as here, a court has certified a class, Rule 23(d) of the Federal Rules of Civil

Procedure provides that the Court may make appropriate orders that:

(A) determine the course of proceedings or prescribe measures to prevent undue


repetition or complication in presenting evidence or argument;
(B) require to protect class members and fairly conduct the action giving
appropriate notice to some or all class members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members opportunity to signify whether they consider the
representation fair and adequate, to intervene and present claims or
defenses, or to otherwise come into the action;
(C) impose conditions on the representative parties or on intervenors;
(D) require that the pleadings be amended to eliminate allegations about
representation of absent persons and that the action proceed accordingly; or
(E) deal with similar procedural matters.

Fed. R. Civ. P. 23(d)(1).

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Interpreting this Rule, the Supreme Court has held that, because of the potential for abuse,

a district court has both the duty and the broad authority to exercise control over a class action and

to enter appropriate orders governing the conduct of counsel and parties. Gulf Oil Co. v.

Bernard, 452 U.S. 89, 100 (1981).

The Gulf Oil Court specified that any order that limited communications between parties

and potential class members should be based on a clear record and specific findings that reflect a

weighing of the need for a limitation and the potential interference with the rights of the parties.

Id. at 101. A court making this assessment should look to further the policies embodied in Rule

23, while limiting speech as little as possible, consistent with the rights of the parties under the

circumstances. Id. at 102. This Court has also recognized that when proceeding under

Fed.R.Civ.P. 23(d) . . . plaintiffs must demonstrate good cause or its equivalence to limit

communications in the manner proposed in this class action litigation. Gottstein v. Natl Assn

for the Self Employed, 186 F.R.D. 654, 657 (D. Kan. 1999) (citing Gulf Oil Co., 452 U.S. at

101-02).

One policy of Rule 23 is the protection of class members from misleading

communications from the parties or their counsel. That same policy concern applies where a

party misleads class members by omitting critical information from its communications. In re

Currency Conversion Fee Antitrust Litig., 361 F. Supp. 2d 237, 252 (S.D.N.Y. 2005); see also In

re Sch. Asbestos Litig., 842 F.2d 671, 680 (3d Cir. 1988) (Misleading communications to class

members concerning the litigation pose a serious threat to the fairness of the litigation process, the

adequacy of representation and the administration of justice generally.).

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B. THE PHIPPS BLOC AND JOHNSON FIELDS GROUP HAVE VIOLATED APPLICABLE
ETHICAL RULES AND FED. R. CIV. P. 23

Here, the Phipps Blocs and the Johnson Fields Groups conduct violates all of the

aforementioned ethical rules and Rule 23 of the Federal Rules of Civil Procedure.

1. KRPC 4.2

KRPC 4.2 is known as a no contact rule. The no-contact rule serves several important

ends. It prevents attorneys from exploiting the disparity in legal skills between attorneys and

laypeople. . . . It preserves the integrity of the attorney-client relationship. . . . It may assist

settlement by routing disputes through lawyers accustomed to the negotiation process[.]

Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 411 (E.D.N.Y. 2015) (internal citations omitted).5

With respect to the KRPC 4.2 requirement that the violators conduct arise in

representing a client, here, the Phipps Bloc and the Johnson Becker firm represent numerous

other corn farmers asserting MIR162 contamination-related claims against the Syngenta

defendants, including in this Court and in other forums (both state and federal).

Regarding the second prong of KRPC 4.2, which provides that a lawyer shall not

communicate about the subject of the representation with a person the lawyer knows to be

represented by another lawyer in the matter (emphasis added), the Phipps Blocs and Johnson

Fields Groups conduct likewise falls within the meaning of this language. This Court has

broadly held that the subject matter of representation in a litigated matter is not limited to the

merits of the various claims; it includes the entire litigation process. Hammond, 167 F. Supp.

5
Accord Scott v. Chipotle Mexican Grill, Inc., 2014 WL 4852063, at *2 (S.D.N.Y. Sept. 29, 2014)
(Barring lawyers from communicating directly with an opposing party represented by counsel preserves
the integrity of the attorney-client relationship, including by preventing counsel from driving a wedge
between the opposing attorney and that attorneys client.) (citation omitted); Michaels v. Woodland, 988
F. Supp. 468, 470 (D.N.J. 1997) (The Rule aims at preserving the integrity of the attorney-client
relationship and the posture of the parties within the adversarial system. Principally, the Rule seeks to
protect the lay person who may be prone to manipulation by opposing counsel.) (citation omitted).

17
Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 23 of 34

2d at 1282 (citation and internal quotation marks omitted). As discussed above, in their

communications with both Class Representatives and absent Class Members, including the

proposed retainer agreements, the websites operated by them, their advertisements, and the

Phipps Blocs event meetings with Class Members, the Phipps Bloc and the Johnson Fields

Group have communicated about the Syngenta MIR162 litigation.

The Phipps Bloc and Johnson Fields Group have also communicated with a person the

lawyer knows to be represented by another lawyer within the meaning of KRPC 4.2. The

Phipps Blocs and the Johnson Fields Groups member firms are aware (or plainly should be

aware) that the Class Representatives and absent Class Members they have solicited or advertised

to are already represented by other counsel. Comment 8 to KRPC 4.2 provides that such actual

knowledge [of the representation by another lawyer] may be inferred from the circumstances.

Here, by virtue of this Courts September 26, 2016 Certification Order (which Phipps

opposed, ECF No. 2348), all Class Representatives and absent Class Members became legally

represented by Class Counsel in this litigation. The Courts Order in fact expressly appointed

Class Counsel for all Class Members in this litigation. See In re Syngenta AG MIR162 Corn

Litig., No. 14-MD-2591-JWL, 2016 WL 5371856, at *15 (D. Kan. Sept. 26, 2016). Under such

circumstances, it is beyond genuine dispute that all Class Members have been represented by

Class Counsel since September 26, 2016. See Harlow v. Sprint Nextel Corp., No.

08-2222-KHV-DJW, 2012 WL 646003, at *6 (D. Kan. Feb. 28, 2012) (Here, the Court finds that

because the survey responses were communicated after the case was certified as a class action, the

class members are clients of class counsel for purposes of attorney-client privilege.);

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Hammond, 167 F. Supp. 2d at 1286 (before class is certified, no attorney-client relationship

exists between class counsel and the putative class members) (citing cases).6

The Phipps Bloc and the Johnson Fields Group, as lawyers representing their own

individual clients (or Class Members they have been ethically retained by) in state or federal

Syngenta MIR162-related litigation, including cases that became part of this MDL, are thus

deemed to be aware of this Courts ethical rules, orders, and related interpretations. See Folks v.

State Farm Mut. Ins. Co., 299 F. Appx 748, 755 (10th Cir. 2008) (attorneys are deemed to have

knowledge of applicable statutes and case law); State v. Regier, 228 Kan. 746, 750, 621 P.2d 431,

435 (1980) (It is well established that an attorney is charged with knowledge of the disciplinary

rules regulating his or her profession.); In re Kruckenberg, No. 94-4125-SAC, 1994 WL 732527,

at *3 (D. Kan. Nov. 30, 1994) ([A]ttorneys do not walk into a courtroom unwary of what is

expected of them. The standard of professional conduct is well-established through the Model

6
Accord 6 William B. Rubenstein et al., Newberg on Class Actions 19:2, at 257-58 (5th ed. rev. 2016)
([O]nce a class has been certified, the default presumption is that there is an attorney-client relationship
between class counsel and the absent class members.); David F. Herr, Annotated Manual for Complex
Litigation, Fourth 21.33, at 403 & n.915 (rev. ed. 2016) (Once a class has been certified, the rules
governing communications apply as though each class member is a client of class counsel.) (citing cases);
Restatement (Third) of the Law Governing Lawyers 99 cmt. 1 (2000) (considered clients of the lawyer
for the class); Jackson v. Bloomberg L.P., No. 13-CV-2001 (JPO), 2015 WL 1822695, at *2 (S.D.N.Y.
Apr. 22, 2015); Dial Corp. v. News Corp., No. 13-CV-6802 (WHP), 2015 WL 9256930, at *1-2 (S.D.N.Y.
Nov. 16, 2015) (same); Kirola v. City & Cty. of San Francisco, No. C 07-03685 SBA, 2010 WL 3505041,
at *1-2 (N.D. Cal. Sept. 7, 2010) (same); Gortat v. Capala Bros., No. 07-CV-3629 (ILG) (SMG), 2010
WL 1879922, at *2 (E.D.N.Y. May 10, 2010) (Upon class certification, the rules governing
communications with class members are heightened because they apply as though each class member is a
client of the class counsel.) (citing authorities), objections overruled, 2010 WL 3417847 (Aug. 27, 2010);
Blanchard v. EdgeMark Fin. Corp., 175 F.R.D. 293, 301-03 (N.D. Ill. 1997) (same); Montgomery v. Aetna
Plywood, Inc., No. 95 C 3193, 1996 WL 189347, at *6 (N.D. Ill. Apr. 16, 1996) (same); Palumbo v.
Tele-Commcns, Inc., 157 F.R.D. 129, 133 (D.D.C. 1994) (same); Fulco v. Continental Cablevision Inc.,
789 F. Supp. 4547 (D. Mass. 1992); Bower v. Bunker Hill Co., 689 F. Supp. 10321033-34 (E.D. Wash.
1985); Hernandez v. Vitamin Shoppe Indus., Inc., 174 Cal. App. 4th 1441, 1454-55, 95 Cal. Rptr. 3d 734,
745-46 (2009) (The courts duty to protect the rights of all parties is particularly pronounced once a class
has been certified and notified of a potential class settlement, because class members must decide whether
or not to opt out.).

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Rules and other local rules and guidelines.).7 Indeed, the ethical rules of Texas, where Phipps

runs his law firm, and the ethical rules of Minnesota (where the Johnson Fields Group operates

from) prohibit the very conduct they have engaged in here. See In re News Am. Pub., Inc., 974

S.W.2d 97, 100 (Tex. App. 1998); State v. Roers, 520 N.W.2d 752, 759 (Minn. Ct. App. 1994).

Furthermore, the Class Notice, approved by this Court (and opposed by the Phipps Bloc, ECF No.

2660), specifically indicated that the Courts certification order had appointed the Class Counsel

to represent the Class Members. ECF No. 2703, Ex. A (Notice), at 8 (Nov. 23, 2016).

As such, the Phipps Bloc and the Johnson Fields Group knew that the Class

Representatives and absent Class Members were already represented in this matter when they

solicited and advertised to them, and their actions otherwise indicate knowing and willful conduct

that willfully and deliberately encroached on that relationship. For example, the solicitation

letter they sent to Class Members shows actual knowledge that there was a pending class action

lawsuit (Syngenta Corn Case or class action lawsuit) in this Court, and that the class had been

certified. Downing Decl., Ex. C; Donarski Decl., Ex. A.

Federal courts have often used their powers and enjoined lawyers improper or misleading

solicitations to class members. E.g., McWilliams v. Advanced Recovery Sys., Inc., 176 F. Supp.

3d 635, 640, 644-45 (S.D. Miss. 2016) (prohibiting counsel who made improper solicitations to

class members from further oral or written communications with members of the certified

class); In re McKesson HBOC, Inc. Secs. Litig., 126 F. Supp. 2d 1239, 1241-47 (N.D. Cal. 2000)

7
See also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 666 n.9
(1985) ([A]n attorney is properly charged with knowledge of all applicable disciplinary rules and ethical
guidelines.); B.K.B. v. Maui Police Dept, 276 F.3d 1091, 1106 (9th Cir. 2002) (all attorneys are
presumed to know the law); Rouhib v. Zurbrick, 67 F.2d 570, 570 (6th Cir. 1933) (counsel (most
certainly counsel) are presumed to know the substantive law); see also p. 14 n.3, supra (citing Jud. Panel
on Multidist. Litig. R. 2.1(c) (attorneys whose cases are transferred pursuant to 28 U.S.C. 1407 are
entitled to continue representing their clients)).

20
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(granting lead counsels application to enjoin solicitation of shareholders for purpose of mounting

non-class claims); Midland Funding, LLC v. Brent, No. 3:08 CV 1434, 2011 WL 1882507, at *6

(N.D. Ill. May 17, 2011) (enjoining attorneys who had sent claim forms to settlement class

members with opt-out box on form preselected); see also In re Garcia, 282 Kan. 721, 722-24, 147

P.3d 132, 133-35 (2006) (imposing, in non-class action case, discipline of public censure for

violation of KRPC 4.2).

Here, not only has the Phipps Bloc improperly solicited absent Class Members, but it has

directly solicited named Plaintiffs and Class Representatives who were represented by their own

individual counsel long before the class was certified. See McWilliams, 176 F. Supp. 3d at 640

(An attorney who wishes to poach members of a certified class action should probably not

attempt to poach the named plaintiff and class representative.).

2. KRPC 7.1(a)

The Phipps Blocs and Johnson Fields Groups false and misleading communications

with represented Class Representatives and absent Class Members also violate KRPC 7.1(a) (A

lawyer shall not make a false or misleading communication about the lawyer or the lawyers

services. A communication is false or misleading if it: (a) contains a material

misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a

whole not materially misleading.).

The Phipps Blocs and Johnson Fields Groups solicitations and advertisements are false

and misleading because among other things: (a) they make misleading statements that give the

impression to Class Members that they are not already represented by other attorneys and

significantly fail to disclose that the Court has appointed Class Counsel to represent Class

Members, Downing Decl., Exs. A-D, F, G; Donarski Decl., Exs A, B; Mahorney Decl. 8-9;

Tilton Decl. 8-9; (b) the Johnson Fields Groups solicitations attempt to confuse Class

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Members into believing that the Corn Growers Claim Center (operated by the Group) is the

National Corn Growers Association, and that the latter endorses the Groups solicitations,

Donarski Decl., 8-9; Ex. A; (c) the Phipps Bloc makes multiple false and misleading

statements about their role in In re Genetically Modified Rice Litigation, including that We won

$750 million for rice farmers, that we handled all of [the rice] litigation in Arkansas, that we

are the only lawyers that represented farmers for their individual damages and recovered

individual damages, Downing Decl. 3 & Ex. G, and that Martin Phipps was responsible for the

$750 million settlement in In re Genetically Modified Rice Litigation, No. 4:06 MD 1811 (CDP)

(E.D. Mo.), Downing Decl., Ex. G, when, in fact, other lawyers, including Class Counsel Scott

Powell, handled rice litigation in Arkansas and, because the rice litigation was not a class action,

all lawyers in that litigation represented farmers for their individual damages and recovered

individual damages (in fact, the largest verdict for farmers in the rice litigation by far was a

verdict obtained by Co-Lead Scott Powell in Arkansas state court), Downing Decl. 3; and (d)

the Phipps Bloc fails to inform Class Members that the courts have held that Phipps, in the similar

litigation to which he refers, the Bayer GMO Rice Cases, benefitted greatly from the efforts

of the common benefit attorneys (not including Phipps), whereas Phipps work for his own clients

in that litigation did not benefit the rest of the plaintiffs, and that his conduct may have actually

interfered with the progress of the litigation. As Judge Perry stated in that case:

[T]he Phipps Group did not coordinate with the plaintiffs co-lead counsel at any
time during this litigation. I conclude that the work done by the Phipps Group for
its own clients did not benefit the rest of the plaintiffs, while the work performed by
the common benefit attorneys definitely benefitted the Phipps Group and its clients.
It is not an exaggeration to say that the Phipps Group has been unjustly enriched by
the work of the common-benefit attorneys. And at times the Phipps Groups
conduct may have actually interfered with the progress of the case and the
settlement. As co-lead counsel point out, I was twice required to consider requests
for sanctions when the Phipps Group improperly attempted to solicit as clients
plaintiffs who were already represented by other counsel. I will deny the Phipps

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Groups motion for allocation and distribution of common benefit fees and
expenses.

In re Genetically Modified Rice Litig., No. 4:06MD1811 CDP, 2012 WL 6085141, at *3 (E.D.

Mo. Dec. 6, 2012), aff'd, 764 F.3d 864, 869-70, 872-73 (8th Cir. 2014).

The Phipps Bloc and Johnson Fields Group have engaged in this unethical behavior for

the benefit of their own financial gain, without regard for the interests of the Class Members that

they are soliciting.

3. KRPC 7.3(b)(2) & 7.3(c)

The Phipps Blocs and Johnson Fields Groups solicitations and advertisements

themselves are also improper because they contradict KRPC 7.3(b)(2), which provides that [a]

lawyer shall not solicit professional employment by written, recorded or electronic

communication or by in-person . . . contact . . . if . . . the solicitation involves coercion[.] Here,

the solicitations and advertisements improperly (a) attempt to coerce, pressure, and induce

already-represented Class Representatives and absent Class Members to enter into retainer

agreements with the Phipps Bloc or the Johnson Fields Group; and (b) attempt to induce, pressure,

and coerce them into opting out of the certified class action.

It bears mention that this is the prototypical class action where protection of individual

class members from possible coercion is warranted. See, e.g., In re Currency Conversion Fee

Antitrust Litig., 361 F. Supp. 2d 237, 253-54 (S.D.N.Y. 2005) (unsupervised communications

with putative credit cardholder class members to change the terms of their cardholder agreements

was potentially coercive and improper). Here, the Class Representatives and absent Class

Members are corn farmers. They are not savvy lawyers or sophisticated corporate or

commercial entities with the ability to seek advice from their own in-house legal teams. As such,

the Phipps Blocs and Johnson Field Groups conduct demonstrates a willful or purposeful effort

23
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to take unfair advantage of and prey upon unsophisticated non-lawyers who are unaware or

unsure that lawyers already represent them. It plainly amounts to coercion, i.e., the sort of

conduct . . . that Rule 4.2 was designed to prevent: obtaining a tactical advantage by knowingly

contacting a represented party without notifying her lawyer. Velez v. Novartis Pharm. Corp.,

No. 04 Civ. 9194 (CM), 2010 WL 339098, at *3 (S.D.N.Y. Jan. 26, 2010).

In addition, the Phipps Bloc plainly failed to identify the solicitation letters as

advertisement materials at the end of the letters, and the Johnson Fields Groups solicitation

document fails to do the same at the beginning of the document, in clear dereliction of KRPC

7.3(c). See Downing Decl., Ex. C; Donarski Decl., Ex. A. In short, the Phipps Blocs and

Johnson Fields Groups misleading and demonstrably false solicitation efforts violate the ethical

rules of this Court and the State of Kansas.

4. KRPC 8.4

The Phipps Blocs and Johnson Fields Groups aforementioned conduct has clearly

violated KRPC 8.4(b), (c), and (d), which prohibit conduct that [v]iolate[s] or attempt[s] to

violate the rules of professional misconduct, engage[s] in conduct involving dishonesty, fraud,

deceit or misrepresentation, or engage[s] in conduct that is prejudicial to the administration of

justice.

5. Fed. R. Civ. P. 23

The Phipps Blocs and Johnson Fields Groups solicitations also violate Rule 23 of the

Federal Rules of Civil Procedure. As the McWilliams decision aptly stated:

[McHale] communicated with class members without Court approval, without the
information required by Rule 23(c)(2)(B), and without considering, as just one
example, that her contingency fee schedule was ultimately subject to Rule 23(h). . . .
Among other things, recipients of McHales solicitation may have concluded that
they were definitively members of the class . . . , that hiring McHale was the only
way to recover damages, or that McHale was class counsel. The first conclusion is
debatable; the second and third conclusions are false. The letters also significantly

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Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 30 of 34

fail to disclose that the Court has appointed Class Counsel to represent Class
members. . . . .

McHales action was contrary to the text and purpose of Rule 23.
Solicitations encouraging members of a certified class to opt-out and bring separate
lawsuits risk defeating the efficiency inherent in the class action form. . . .The Court
finds that . . . solicitation was misleading, has unduly complicated this proceeding,
and will cause additional complications as the case progresses.

McWilliams, 176 F. Supp. 3d at 640-41 (citations and internal quotation marks omitted).

In light of the Phipps Blocs and the Johnson Fields Groups demonstrated and ongoing

pattern of blatantly false and improper solicitation communications with represented Class

Representatives and absent Class Members, the Court should intervene to bring a prompt halt to

and rectify this misconduct and the likely injury to the rights of those to whom the Phipps Bloc

and Johnson Fields Group have been improperly soliciting and advertising .

III. REQUESTED RELIEF8

Given the looming April 1, 2017 opt-out deadline and the great likelihood that the Phipps

Blocs and Johnson Fields Groups misconduct has already inflicted damage on the Classes by

falsely inducing members to opt out and the certainty that this misconduct will continue absent

judicial intervention the Court should enter an Order granting the following relief:

(i) prohibiting the Phipps Bloc or the Johnson Fields Group, or anyone acting on their
behalf, from engaging in any further solicitations or communications with Class
Representatives and absent Class Members related to this Syngenta AG MIR162
Corn Litigation without first inquiring whether those receiving their
communications are represented by counsel, and ordering the Phipps Bloc and the
Johnson Fields Group to cease contacting or attempting to contact absent Class
Members or Class Representatives for any reason, including for purposes of
entering into a retainer agreement with the Phipps Bloc or the Johnson Fields
Group;

(ii) prohibiting solicitations or any communications by the Phipps Bloc or the Johnson
Fields Group or, anyone acting on their behalf, with any party or entity that is

8
Class Counsel reserve their right to seek additional relief against the Phipps Bloc and the Johnson Fields
Group concerning the conduct discussed herein.

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Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 31 of 34

represented by other counsel in a matter related to the Syngenta AG MIR162 Corn


Litigation (including by virtue of the Courts September 26, 2016 Certification
Order) without that attorneys prior written consent;

(iii) requiring the Phipps Bloc and the Johnson Fields Group to provide an affidavit
that identifies the names and addresses of all Class Members whom they did not
represent prior to the Courts September 26, 2016 Order granting certification, and
to whom they have sent, delivered, or transmitted any communications, and that
details the dates of such communication or contact, and a description of such
contact or communications, see Hammond, 167 F. Supp. 2d at 1291-92;

(iv) requiring the Phipps Bloc and the Johnson Fields Group to turn over to Class
Counsel all materials, documents, or information sent or transmitted to, or
obtained from, Class Members or Class Representatives in connection with such
communications or contact, see id.;

(v) requiring the Phipps Bloc and the Johnson Fields Group to mail, at their own
expense, a curative letter, whose contents shall first be explicitly approved by both
Class Counsel and this Court, to all Class Members (both clients and non-clients)
that explains the impropriety of their solicitation and advertising efforts and
corrects each of the misleading statements made in conjunction therewith;

(vi) declaring null and void and setting aside all retainers that the Phipps Bloc the
Johnson Fields Group have entered into and all opt-out forms that the Phipps Bloc
the Johnson Fields Group have caused Class Members to execute at any time since
September 26, 2016, see Gortat, 2010 WL 1879922, at *3;

(vii) ordering the Phipps Bloc and the Johnson Fields Group to amend any
representations on Internet websites or social media, or other advertising methods,
over which they have control, to indicate (1) that the Phipps Bloc and the Johnson
Fields Group firms are not permitted to represent any Class Members in Syngenta
AG MIR162 Corn Litigation that were either not represented by counsel prior to
September 26, 2016 or were represented by other counsel (not including the Bloc
firms) prior to that date; (2) that Phipps or his law firm were not principally
responsible for the $750 million dollar settlement in In re Genetically Modified
Rice Litig., No. 4:06 MD 1811 CDP (E.D. Mo.), or for the largest settlement in
U.S. history for Texas, Arkansas, Louisiana, Mississippi, and Missouri long grain
rice farmers; and (3) that any success Phipps or his law firm experienced in the
Bayer Rice GMO litigation benefitted substantially from the efforts of other
counsel in In re Genetically Modified Rice Litigation; and

(viii) whatever other and further relief the Court deems appropriate.

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Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 32 of 34

IV. CONCLUSION

The Phipps Blocs and the Johnson Fields Groups actions interfere with, and infringe

upon, the rights of represented Class Members and their counsel, and violate the Kansas Rules of

Professional Conduct as well as the Rules of this Court and Fed. R. Civ. P. 23. Class Counsel

thus respectfully requests that the Court grant the instant motion, exercise its supervisory

authority, and enter the relief requested above to remedy the Phipps Blocs and the Johnson Fields

Groups misconduct and to ensure that those attorneys cease and desist from such future

misconduct.

Dated: February 17, 2017 Respectfully submitted,

/s/ Patrick J. Stueve


Patrick J. StueveKS Bar #13847
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7100
stueve@stuevesiegel.com

Don M. Downing, #30405 MO


GRAY, RITTER & GRAHAM, P.C.
701 Market Street, Suite 800
St. Louis, MO 63101
Telephone: (314) 241-5620
ddowning@grgpc.com

William B. Chaney, #04108500 TX


GRAY REED & MCGRAW, P.C.
1601 Elm Street, Suite 4600
Dallas, TX 75201
Telephone: (214) 954-4135
wchaney@grayreed.com

Scott Powell, #ASB-7523-L60S


HARE WYNN NEWELL & NEWTON
2025 3rd Ave. North, Suite 800
Birmingham, AL 35203

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Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 33 of 34

Telephone: (205) 328-5330


scott@hwnn.com

CLASS COUNSEL

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Case 2:14-md-02591-JWL-JPO Document 2915 Filed 02/17/17 Page 34 of 34

CERTIFICATION OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served,
via the Courts ECF system, on Phipps, Anderson & Deacon LLP and Clark, Love & Hutson GP,
on this 17th day of February, 2017. I also certify that a true and correct copy of the foregoing
document has been served, by overnight (delivery on Saturday) express mail, and by email, on
Meyers & Flowers; the Pulaski Law Firm PLLC; Johnson Becker, PLLC; and the Fields Law
Firm, LTD, on this 17th day of February, 2017. The office and email addresses of these law
firms are set forth below.

/s/ Patrick J. Stueve


Class Counsel and Liaison Counsel for Plaintiffs

Michael K. Johnson
Johnson Becker, PLLC
444 Cedar St #1800
St Paul, MN 55101
Tel. No. (612) 436-1800
mjohnson@johnsonbecker.com

Stephen J. Fields
The Fields Law Firm
701 North Washington Ave., #300
Minneapolis, MN 55401
Tel. No. (612) 370-1511
steve@fieldslaw.com

Peter J. Flowers
Meyers & Flowers
3 N 2nd St
St Charles, IL 60174
Tel. No. (630) 232-6333
pjf@meyers-flowers.com

Pulaski Law Firm, PLLC


2925 Richmond Ave #1725
Houston, TX 77098
Tel. No. (713) 664-4555
adam@pulaskilawfirm.com

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