# City of East St. Louis, Illinois v. Monsanto Corporation

> District Court, S.D. Illinois · March 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10157442

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** March 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10157442

## How later opinions describe it (automated extraction)

- finding a neutrality-spectrum analysis applied, meaning the court had to decide whether the lawsuit was criminal, civil, or civil but penal in order to assess the extent to which neutrality requirements were implicated
- concluding the attorney general’s office did “not need to be intimately involved in all of the everyday work or decision-making…to exercise meaningful control over the proceedings”
- noting, “if the government attorney or prosecutor retains ‘full control over the course of the litigation,’ then the right to an impartial tribunal is not infringed by the use of a contingency fee”
- noting, to the extent Clancy suggested public-nuisance prosecutions always invoked the same constitutional and institutional interests present in a criminal case, it “was unnecessarily broad and failed to take into account the wide spectrum of cases that fall within the public…

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CITY OF EAST ST. LOUIS, )
)
Plaintiff, )
)
vs. ) Case No. 3:21-cv-232-DWD
)
MONSANTO CO., PHARMACIA LLC, )
and SOLUTIA, INC., )
)
Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:
Before the Court is Defendants’ Combined Motion to Disqualify Counsel and to
Stay (“Combined Motion”). (Doc. 137). Plaintiff filed a Memorandum in Opposition to
the Combined Motion. (Doc. 140). The matter was the subject of a hearing on February 1,
2024. (Docs. 168 & 169). As explained below, the Combined Motion is DENIED.
I. BACKGROUND
This case was removed from the Circuit Court of St. Clair County, Illinois. (Doc.
1). Plaintiff filed a Second Amended Complaint for Damages and Abatement (“Second
Amended Complaint”) (Doc. 129) against Defendants, alleging a public nuisance (Count
I), violations of Plaintiff’s Municipal Code (§ 50-71 (Nuisance)) (Count II), abatement
under Plaintiff’s Municipal Code (§§ 50-79 and 62-2) (Count III), a continuing trespass
(Count IV), a design defect (Count V), a failure to warn and instruct (Count VI), and
negligence (Count VII). (Doc. 129, generally). Plaintiff’s allegations pertain to “the
contamination of vast swaths of its land with polychlorinated biphenyls…manufactured
in Defendants’ Monsanto Plant in adjacent Sauget, Illinois.” (Doc. 129, pg. 1).

On March 12, 2024, the Court dismissed Count II of the Second Amended
Complaint without prejudice. (Doc. 171). The Court found it lacked subject matter
jurisdiction to grant the only relief requested in Count II, namely, fines under § 1-15 of
Plaintiff’s Municipal Code, which the Court found to be criminal in nature. (Doc. 171).
The Combined Motion was filed before the above ruling. Therefore, when arguing
Plaintiff’s attorneys must be disqualified, Defendants relied heavily on the request for

fines under § 1-15 in Count II. (Doc. 137, generally).1 When resolving the Combined
Motion, the Court accounts for the fact that Count II, together with its request for fines,
was dismissed without prejudice and is now inconsequential to the Combined Motion.
II. ANALYSIS
In the Combined Motion, Defendants argue Plaintiff’s pursuit of this action,

pursuant to its police power and ordinances, violates their due process rights because
Plaintiff’s attorneys have “a significant financial interest in any monetary recovery.”
(Doc. 137, pg. 1). Each attorney, including the City Attorney, entered a contingency-fee
agreement entitling them to a “substantial percentage” of any recovery. (Doc. 137, pg. 1).

1For example, in the Combined Motion, Defendants note that Plaintiff sought daily fines, going
back to the 1970s, under § 1-15(a) of its Municipal Code, which they argue outlines a misdemeanor carrying
a term of imprisonment as a penalty. (Docs. 129, pg. 28; 137, pgs. 5-8, 14). Defendants also note, “[a]cting
in his official capacity, the City’s Chief of Police signed the original ordinance citations.” (Docs. 1-1, pg. 2;
137, pg. 7). Defendants argue contingency-fee agreements are barred in the pursuit of these criminal
penalties. (Doc. 137, pg. 1). Again, though, the Court dismissed Count II of the Second Amended Complaint
without prejudice on March 12, 2024. (Doc. 171).
Although Defendants concede that contingency-fee agreements are sometimes
permitted in the context of civil public nuisance cases, Defendants argue Plaintiff has not

in any way satisfied the necessary prerequisites for neutrality, which purportedly
require, at a minimum, “a financially-neutral government lawyer [to] oversee and, in fact,
control the prosecution of [the] public nuisance action.” (Doc. 137, pgs. 1, 5, 11-13).
Defendants also suggest Plaintiff, other than having the right to approve a settlement,
does not “retain critical decision-making responsibilities over the course and conduct of
the litigation.” (Doc. 137, pg. 3). Defendants emphasize the importance of the rule against

contingency-fee agreements in this context by stating, “[a] lawyer representing a
government entity, prosecuting a case in the name of the public interest, has a duty to
seek justice, not to obtain a conviction or to win at any cost.” (Doc. 137, pg. 1).
In response, Plaintiff argues, inter alia, there is no basis for the “drastic step of
disqualifying the City’s chosen counsel” because the contingency-fee agreement is

appropriate under the authorities governing requests for civil, rather than criminal, relief,
and the City could not otherwise pursue relief. (Doc. 140, pgs. 3, 12-19).2 In light of its
belief that there are no conflicts, Plaintiff argues a stay is unwarranted. (Doc. 140, pg. 4).
Notably, since the passage of the continency-fee agreement and the filing of the
Combined Motion, Plaintiff amended the contingency-fee agreement to include

“inadvertently omitted” language indicating, inter alia, “all critical decision-making” is

2Plaintiff notes it is a financially distressed city under the Illinois Financially Distressed City Law,
65 ILCS 5/8-12-16. (Docs. 140, pg. 19; 140-4, pg. 3).
reserved to Plaintiff. (Doc. 140, pgs. 17-18). Also, the City retained conflict counsel. (Doc.
140, pg. 18). The amendment to the contingency-fee agreement, in part, provides:

WHEREAS: On January 9, 2020, the City entered into an agreement
for legal services with…[the Attorneys]…through
Resolution No. 20-20001 (the “2020 Agreement”); and

WHEREAS: On July 7, 2022, the City entered into an agreement for
legal services with the Attorneys through Resolution
No. 22-20040 (the “2022 Agreement”), which by its
terms superseded the 2020 Agreement; and

WHEREAS: The subject and purpose of the 2020 Agreement and
the 2022 Agreement was to authorize the City’s
retention of the Attorneys to investigate, evaluate, and
litigate the City’s potential claims against entities
responsible for creating or maintaining a historic
nuisance on any property within the City’s corporate
limits in violation of any municipal ordinance, and any
other claims related thereto (the “Nuisance Matters”);
and

…

WHEREAS: The City did not through the 2020 Agreement or 2022
Agreement in any way delegate to the Attorneys its
authority to exercise complete and ultimate control
over the Nuisance Matters, nor did it abrogate its
authority to oversee the Attorneys’ work or to overrule
the Attorneys’ decisions as appropriate, or its
obligation to serve the public interest; and

WHEREAS: The 2020 Agreement memorialized the City’s complete
and ultimate control over the Nuisance matters by
stating: “decisions regarding settlement, including but
not limited to all critical decision-making regarding the
case, are reserved exclusively to the discretion of the
client and its retained general counsel. Any defendant
that is the subject of the litigation may contact the
retained general counsel directly; the client shall retain
complete control over the course and conduct of the
litigation; the client retains a veto power over any
decisions made by outside counsel; and the client’s
retained general counsel with supervisory authority
will remain personally involved in overseeing the
litigation”; and

WHEREAS: The 2022 Agreement inadvertently omitted the above-
quoted language; and

WHEREAS: The Corporate Authorities find that it is in the best
interests of the City to correct this omission and to
reaffirm the City’s complete and ultimate control over
the Nuisance Matters through the execution of the
Contingent Fee Agreement attached hereto as Exhibit
A, which agreement by its terms supersedes the 2022
Agreement; and

WHEREAS: The Corporate Authorities further find that, to avoid
even the appearance of any impropriety or conflict of
interest, the City’s retained conflict counsel, Mr. Phil
Rice, Esq., shall be specially designated to fulfill the
City’s obligation to oversee and control the Nuisance
Matters upon the passage of this Resolution.

(Docs. 140-4, pgs. 3-4; 140-5, pgs. 2-3).

By virtue of this amendment to the contingency-fee agreement, Plaintiff argues
any conflicts of counsel have been cured, such that there is no basis for disqualification.
Now, the Court has the inherent power to disqualify an attorney from
representing a client. See Healy v. Axelrod Const. Co. Defined Ben. Pension Plan and Trust,
155 F.R.D. 615, 618 (N.D. Ill. 1994). However, the disqualification of counsel “is a drastic
measure” that the Court “should hesitate to impose[,] except when absolutely necessary.”
See Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982);
accord Watkins v. Trans Union, LLC, 869 F.3d 514, 519 (7th Cir. 2017). An order of
disqualification destroys the attorney-client relationship “by depriving a party of [the]
representation of their own choosing.” See Freeman, 689 F.2d at 721 (citing Comden v.
Superior Court, 20 Cal. 3d 906 (1978)); see also Watkins, 869 F.3d at 519 (Seventh Circuit

noting its prior observation “that granting a motion for disqualification has ‘immediate,
severe, and often irreparable…consequences’ for the party and disqualified attorney,” as
there is an immediate deprivation of the losing party’s chosen representation and a
disruption of the litigation). Therefore, although motions to disqualify counsel may be
“both legitimate and necessary,” they “should be viewed with extreme caution for they
can be misused as techniques of harassment.” See Freeman, 689 F.2d at 721; see also Doe v.

Nielsen, 883 F.3d 716, 718 (7th Cir. 2018) (“It is our duty to ‘maintain public confidence in
the legal profession and assist[] in protecting the integrity of the judicial proceeding.’ ”).
Relevantly, “traditions of prosecutorial discretion do not immunize from judicial
scrutiny cases in which the enforcement decisions of an administrator were motivated by
improper factors or were otherwise contrary to law.” See Marshall v. Jerrico, Inc., 446 U.S.

238, 249 (1980); accord Merck Sharp & Dohme Corp. v. Conway, 861 F. Supp. 2d 802, 812 (E.D.
Ky. 2012). A prosecutor must seek to do justice, “[a]nd a ‘scheme injecting a personal
interest, financial or otherwise, into the enforcement process may bring…impermissible
factors into the prosecutorial decision and in some contexts raise serious constitutional
questions.’ ” See Merck, 861 F. Supp. 2d at 812 (quoting Marshall, 446 U.S. at 249-50).

Put more directly, a prosecutor’s financial interest in a case may violate a
defendant’s due process rights, i.e., the right to an impartial tribunal. See id. For this
reason, contingency-fee contracts are generally barred in criminal prosecutions, as “the
prosecutor’s duty to serve the public interest can be distorted by a system of
renumeration that compensates him based on the outcome of cases.” See id. (quoting
People ex rel. Clancy v. Superior Court, 39 Cal. 3d 740, 748 (1985); citing State v. Lead Indus.,

Ass’n, Inc., 951 A.2d 428, 476 n. 48 (2008); Baca v. Padilla, 190 P. 730, 732 (1920)).
Consequently, the standards of neutrality, ethics, and constitutional behavior, required
of state prosecutors, extend to private counsel performing prosecutorial functions. See id.
(citing Young v. U.S. ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 804 (1987); Martin H. Redish,
Private Contingent Fee Lawyers and Public Power: Constitutional and Political Implications, 18
S. Ct. Econ. Rev. 77, 95 (2010)). If the behavior of a government attorney is deemed to be

unacceptable, then that behavior by a private actor who is performing identical functions
must also be deemed to be unacceptable. See id. (quoting Redish, 18 S. Ct. Econ. Rev. at
96). Accordingly, a private attorney prosecuting a criminal action cannot enter a
contingency-fee agreement. See id. at 812-13; see also Young, 481 U.S. at 814 (stating, in case
of criminal contempt, “we establish a categorical rule against the appointment of an

interested prosecutor, adherence to which requires no subtle calculations of judgment”).
In the civil context, the Northern District of Illinois has addressed a similar issue
as that presented here. See City of Chicago v. Purdue Pharma L.P., No. 14-cv-4361, 2015 WL
920719 (N.D. Ill. March 2, 2015). In that case, the City of Chicago sued the defendants for
alleged violations of the Chicago Municipal Code and state law. Id. at *1. The defendants

argued, inter alia, the City of Chicago’s retained law firm’s “pecuniary interest in the
outcome of the suit create[d] a conflict of interest that violate[d] defendants’ right to due
process.” Id. at *1-2. District Judge Jorge L. Alonso denied the defendants Joint Motion,
recognizing “[a] number of courts have held that government entities may hire outside
counsel on a contingent-fee basis if there are certain safeguards in place.” Id. at 4. Such
safeguards, District Judge Alonso noted, include: (1) the retention of complete control

over the course and conduct of the case by the public-entity attorneys; (2) the retention of
a veto power by the public-entity attorneys over any decisions made by outside counsel;
and (3) the personal involvement of a public-entity attorney in overseeing the litigation.
See id. (quoting County of Santa Clara v. Superior Court, 50 Cal. 4th 35, 40 (2010), cert. denied
sub nom. Atl. Richfield Co. v. Santa Clara County, 562 U.S. 1169 (2011); quoting Lead Indus.,
951 A.2d at 477; citing David B. Wilkins, Rethinking the Public-Private Distinction in Legal

Ethics: The Case of “Substitute” Attorneys General, 2010 Mich. St. L. Rev. 423); accord Am.
Bankers Mngt Co., Inc. v. Heryford, 190 F. Supp. 3d 947, 955 (E.D. Ca. 2016). Based upon
these considerations, Judge Alonso ultimately found the contingency-fee contract
contained the necessary safeguards, as the City of Chicago “retain[ed] control over the
investigation and litigation.” See Purdue Pharma L.P., 2015 WL 920719 at *5-6.

These authorities beg the question “what do we have here?” See Heryford, 190 F.
Supp. 3d at 956-58 (finding a neutrality-spectrum analysis applied, meaning the court
had to decide whether the lawsuit was criminal, civil, or civil but penal in order to assess
the extent to which neutrality requirements were implicated); Merck, 861 F. Supp. 2d at
813 (noting the rule against the use of contingency fees in criminal actions may extend to

a “small” class of civil actions that resemble criminal prosecutions, such as eminent
domain and public nuisance abatement actions that “involve a ‘delicate weighing of
values,’ ” and finding it was presented with such an action because it was “penal in
nature and thus implicate[d] the requirement of neutrality”); Clancy, 39 Cal. 3d at 749
(noting public nuisance abatement actions may share the public interest aspect of
criminal cases and coincide with or trigger criminal prosecutions, such that there is a need

for a neutral prosecuting attorney); County of Santa Clara, 50 Cal. 4th at 52 (noting, to the
extent Clancy suggested public-nuisance prosecutions always invoked the same
constitutional and institutional interests present in a criminal case, it “was unnecessarily
broad and failed to take into account the wide spectrum of cases that fall within the
public-nuisance rubric”). In this case, Plaintiff is now seeking, inter alia, damages for
injuries to its land and natural resources, including for the loss of ecological health, value,

and revenue of its properties; an award of past, present, and future costs of abating and
remediating the PCB contamination; punitive damages in an amount that will punish and
discourage Defendants and others from such future conduct; and an order for the return
of monies from which Defendants were unjustly enriched after failing to prevent PCB
contamination. (Doc. 129, pgs. 26, 29, 31-35, 37-40).

Here, the Court finds this case does not now resemble the type of proceeding that
necessitates a prohibition on representation by contingency-fee attorneys. To be sure,
Plaintiff is still seeking the enforcement of its Municipal Code. However, the ordinances
that remain to be enforced in this case relate to abatement and remediation, as Plaintiff
seeks the costs stemming from the rectification of the alleged PCB contamination.3

3Plaintiff seeks abatement in the Second Amended Complaint, generally, and in Count III,
specifically. Count III invokes §§ 50-79 and 62-2 of Plaintiff’s Municipal Code. (Doc. 129, pgs. 29-31). Section
50-79 states: “Whenever any nuisance shall be found on any premises within the city, the officials are
authorized to cause such nuisance to be summarily abated in such a manner as may be directed.” City of
East St. Louis, Illinois, Municipal Code § 50-79. Section 62-2 states: “The health department shall cause all
nuisances to be abated or removed which it may deem prejudicial or obnoxious to the public health or
See County of Santa Clara, 50 Cal. 4th at 55-56 (noting if defendants are found liable for a
nuisance, the question will be “how the nuisance should be abated,” resulting, “at most,

in defendants’ having to expend resources to abate the…nuisance they allegedly created,
either by paying into a fund dedicated to that abatement purpose or by undertaking the
abatement themselves”). To the extent Plaintiff’s contingency-fee attorneys have a
financial interest toward that end, however, it will necessarily be tethered to the cost of
reducing the PCBs found on Plaintiff’s properties. At base, Defendants’ primary
argument that Plaintiff’s contingency-fee attorneys “decided on an approach that applies

City ordinances using a novel interpretation in order to inflict as much financial damage
as possible” is of lesser import now that Count II of the Second Amended Complaint has
been dismissed without prejudice. (Doc. 137, pg. 13). Clearly, the enforcement of §§ 50-
79 and 62-2 of the Municipal Code for purposes of obtaining the remedy of abatement,
by itself, does not raise the same due process concerns as the request for fines under § 1-

15 in Count II of the Second Amended Complaint. See County of Santa Clara, 50 Cal. 4th at
56 (“The expenditure of resources to abate a hazardous substance affecting the
environment is the type of remedy one might find in an ordinary civil case.”).
In any event, although Plaintiff and, by extension, its contingency-fee attorneys,
also seek compensatory and punitive damages to remedy common law torts, as well as

attorney fees and costs, the Court finds adequate safeguards are now in place to protect
the due process rights of Defendants. It is no longer true (if, in fact, it ever was true) that

comfort and shall make such sanitary regulations as it may think necessary or expedient to prevent the
introduction or spreading of any contagious, malignant, infectious or pestilential disease.” Id. § 62-2.
Plaintiff does not “retain critical decision-making responsibilities over the course and
conduct of the litigation.” (Doc. 137, pg. 3). To the contrary, consistent with the authorities

discussed herein, the amended contingency-fee agreement now, among other things,
reaffirms that: (1) decisions regarding settlement, including but not limited to all critical
decision-making regarding the case, are reserved exclusively to the discretion of Plaintiff
and its conflict counsel, Mr. Rice, who is paid hourly and not pursuant to a contingency-
fee agreement; (2) in combination with (1), Plaintiff and Mr. Rice retain complete control
over the course and conduct of the litigation, including by the retention of a veto power

over any decisions made by the contingency-fee attorneys; and (3) Mr. Rice will exercise
supervisory authority over the contingency-fee attorneys and will remain personally
involved in overseeing the litigation. See Purdue Pharma L.P., 2015 WL 920719 at *4-6;
County of Santa Clara, 50 Cal. 4th at 59, 64 (adopting these minimum guidelines and
stating, “[p]rivate counsel serving in a subordinate role do not supplant a public entity’s

government attorneys, who have no personal or pecuniary interest in a case and therefore
remain free of a conflict of interest that might require disqualification.”); (Docs. 140-4,
pgs. 3-4; 140-5, pgs. 2-3; 140-6, pg. 2); Merck, 861 F. Supp. 2d at 815 (noting, “if the
government attorney or prosecutor retains ‘full control over the course of the litigation,’
then the right to an impartial tribunal is not infringed by the use of a contingency fee”);

Merck Sharp & Dohme Corp. v. Conway, 947 F. Supp. 2d 733, 748 (E.D. Ky 2013) (concluding
the attorney general’s office did “not need to be intimately involved in all of the everyday
work or decision-making…to exercise meaningful control over the proceedings”).
For these reasons, the Court finds it is not “absolutely necessary” to take the
“drastic measure” of disqualifying Plaintiff’s attorneys, which would serve to deprive

Plaintiff of its chosen counsel and potentially disrupt its ability to pursue this action.
See Healy, 155 F.R.D. at 618; Freeman, 689 F.2d at 721; Watkins, 869 F.3d at 519;
see also County of Santa Clara, 50 Cal. 4th at 56-59, 61-64 (finding the absolute prohibition
on contingency-fee agreements, necessary in criminal cases, was unwarranted in a civil
public-nuisance case, where neither fundamental constitutional rights nor the right to
continue operating an existing business were implicated; however, notwithstanding this

conclusion, the private attorneys prosecuting the action were subject to but satisfied the
“heightened standard of ethical conduct” and neutrality “applicable to public officials
acting in the name of the public”); (Docs. 140-4, pgs. 3-4; 140-5, pgs. 2-3; 140-6, pg. 2).
III. CONCLUSION
For the reasons explained above, the Combined Motion is DENIED.

SO ORDERED.

Dated: March 12, 2024

s/ David W. Dugan
____________________________
DAVID W. DUGAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10157442. Public record. Not legal advice.