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Bias issue faces judge in Monsanto case

(Saturday, Jan. 10, 2004 -- CropChoice news) -- David Barboza, NY Times, 01/09/04: CHICAGO - A federal judge now presiding over a price-fixing case involving the Monsanto Company did not disclose to the parties in the case that in 1997 and 1998 he was listed as a lawyer representing Monsanto in a case that covered some of the same issues, according to lawyers and court documents.

The absence of disclosure that the judge and his former law firm had business dealings with Monsanto in the 1990's has raised conflict of interest questions among some lawyers in the price-fixing case.

Before his appointment to the court in 1998, the judge, Rodney W. Sippel, was chosen by his law firm, now known as Husch & Eppenberger, as one of three lawyers to represent Monsanto in a civil lawsuit against Pioneer Hi-Bred International, another big seed company.

The chairman of Husch & Eppenberger acknowledged that Judge Sippel was listed in court papers for five months as one of the main lawyers for Monsanto in that suit, but he said that Judge Sippel never actually did any work on the case.

The chairman, Joseph P. Conran, also said that Judge Sippel never did any work for Monsanto, one of the biggest clients of the 300-lawyer firm, when he worked there.

Legal experts say Judge Sippel probably did not violate the Judicial Code of Conduct for United States judges but that he should have disclosed his prior relationship with Monsanto to avoid even the appearance of a conflict of interest in the case.

"The fact that he didn't disclose it is troubling," said Deborah Rhode, a professor of law at Stanford University. "Courts are supposed to avoid the appearance of impropriety."

Professor Rhode and other legal experts also said that while Judge Sippel might not have billed Monsanto for work, his listing as a Monsanto lawyer suggested he still might have had access to confidential information and could have served as an adviser in the case.

Judge Sippel was the vice chairman of the litigation committee at Husch & Eppenberger at the time he was listed in the federal court docket as a lawyer representing Monsanto.

The Judicial Code of Conduct says that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

The code also says a judge should disqualify him or herself if "the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter"

Apparently, lawyers now pressing a class-action price-fixing lawsuit against Monsanto, Pioneer and other big seed companies in Judge Sippel's courtroom say the 1997 case is similar enough to the price-fixing case to present conflict of interest problems for the judge.

Some of the plaintiff lawyers in that case recently sent a letter to Judge Sippel asking him to remove himself from the case, according to people who have seen a copy of the letter. The judge ordered the court clerk to file the letter under seal and scheduled a public hearing for Jan. 30.

Lawyers for the lead plaintiff's law firm, Cohen, Milstein Hausfeld & Toll, declined to discuss the letter.

The move to disqualify Judge Sippel came three months after he ruled in favor of Monsanto, Pioneer and other seed companies by denying the price-fixing case class-action status.

Mr. Conran, the chairman of Husch & Eppenberger and one of the lawyers listed with Mr. Sippel as representing Monsanto in the earlier case, said Mr. Sippel was expected to do work on the case but never did so.

"His name was on the list of some pleadings," Mr. Conran said in a telephone interview, "but he never spent a minute on this case. We checked the billing records." A spokeswoman for Monsanto, based in St. Louis, said that as far as the company knew, Judge Sippel had not done any work for Monsanto.

In a faxed response to written questions about his prior association with Monsanto and the conflict of interest questions, Judge Sippel said that he could not discuss the matter because he was considering the plaintiff's request that he disqualify himself from the case.

"The code of conduct for United States judges prohibits judges from publicly discussing the merits of any pending matter," the fax said.

He then added: "Both the U.S. code and the code of conduct set forth the conditions under which a judge should disqualify himself from consideration of matters pending in his court. Any party in litigation before me may file a motion for consideration of this issue, or if I have already ruled, may appeal my decision to the U.S. Court of Appeals for the Eighth Circuit."

Legal experts say that there is at least the appearance of bias on the judge's part and that they are troubled by his decision to seal the letter requesting that he recuse himself from the case.

"I don't know of any motions to disqualify judges that are under seal," said Judith Resnik, a professor of law at Yale University. "Why is it under seal?"

Prof. Stephen Gillers at New York University Law School, however, said that while Judge Sippel probably should have disclosed his relationship with Monsanto, there did not appear to be enough evidence to disqualify him from the price-fixing case because the earlier case - even if he had worked on it for Monsanto - was not the exact same case.

"These are not sufficiently connected to be the same matter," Professor Gillers said, referring to the code of conduct. "The judge has not violated the code of conduct but he could have and should have told the parties about his prior relationship."

The class-action suit is not Judge Sippel's first case involving Monsanto. Last year, he awarded Monsanto $2.9 million in damages - the maximum allowed - from a Tennessee farmer whom Monsanto had accused of violating its patent.

In that case, according to lawyers, Judge Sippel disclosed that he had worked as a lawyer at Husch & Eppenberger, which represented Monsanto, before he became a federal judge. But, they added, he said that the Husch lawyers representing Monsanto in that case had joined the firm after he left it.

James Robertson, a lawyer who represented the farmer, said he did not question Judge Sippel's integrity.

Judge Sippel, 47, joined Husch & Eppenberger in 1981, shortly after graduating from law school at Washington University in St. Louis and working on Senator Thomas Eagleton's 1980 election campaign.

He worked for Husch until 1993, when he left to serve as an administrative aide to Representative Richard A. Gephardt, Democrat of Missouri. He rejoined Husch & Eppenberger in 1995; he was one of about 45 lawyers in the litigation department.

Before Mr. Sippel became a federal judge, Husch & Eppenberger worked for Monsanto on about 16 lawsuits, though Mr. Sippel's name does not appear in any suit other than the 1997 Pioneer case, according to court records.

That case was filed in federal court in Wisconsin. It was moved to St. Louis in August 1997, and a few weeks later the names of Mr. Sippel, Mr. Conran and one other Husch lawyer were entered into the court docket as representing Monsanto.

Three months earlier, in May 1997, President Bill Clinton nominated Mr. Sippel to fill a vacancy at the federal courthouse in St. Louis. Representative Gephardt had recommended Mr. Sippel for the job.

Mr. Sippel's nomination was confirmed on Nov. 8, 1997. His name was removed as a Monsanto attorney in court papers on Jan. 30, 1998.