Kellogg v. Watts Guerra

41 F.4th 1246

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 26, 2022
• Docket: 20-3172
• Status: Published

Opinion

Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 26, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________________

KENNETH P. KELLOGG; RACHEL KELLOGG; KELLOGG FARMS, INC.; ROLAND B. BROMLEY; BROMLEY RANCH, LLC; JOHN F. HEITKAMP; DEAN HOLTORF; GARTH KRUGER; CHARLES BLAKE STRINGER; STRINGER FARMS, INC.,

Plaintiffs - Appellants,

v. No. 20-3172

WATTS GUERRA LLP; DANIEL M. HOMOLKA, P.A.; YIRA LAW OFFICE, LTD; HOVLAND AND RASMUS, PLLC; DEWALD DEAVER, P.C., LLO; GIVENS LAW, LLC; MAURO, ARCHER & ASSOCIATES, LLC; JOHNSON LAW GROUP; WAGNER REESE, LLP; VANDERGINST LAW, P.C.; PATTON HOVERSTEN & BERG, PA; CROSS LAW FIRM, LLC; LAW OFFICE OF MICHAEL MILLER; PAGEL WEIKUM, PLLP; WOJTALEWICZ LAW FIRM, LTD.; MIKAL C. WATTS; FRANCISCO GUERRA; LOWE EKLUND WAKEFIELD CO., LPA; JOHN DOES, 1-250,

Defendants - Appellees.

___________________________________________ Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 2

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:18-CV-02408-JWL-JPO) ___________________________________________

Douglas J. Nill, Douglas J. Nill, PLLC, Minneapolis, Minnesota, for Plaintiffs-Appellants.

Christopher L. Goodman, Thompson, Coe, Cousins & Irons, Saint Paul, Minnesota (John M. Degnan, Kathryn M. Short, and Adam Chandler, Taft Stettinius & Hollister, LLP, Minneapolis, Minnesota; Arthur G. Boylan and Philip J. Kaplan, Anthony Ostlund Baer & Louwagie P.A., Minneapolis, Minnesota; and William L. Davidson and Joao C.J.G. de Medeiros, Lind Jensen Sullivan & Peterson PA, Minneapolis, Minnesota, with him on the briefs), for Defendants-Appellees. ______________________________________________

Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges. _____________________________________________

BACHARACH, Circuit Judge. _____________________________________________

This appeal stems from mass litigation between thousands of corn

producers and an agricultural company (Syngenta). The litigation took two

tracks. On one track, corn producers filed individual suits against

Syngenta. On the second track, other corn producers sued through class

actions. 1

The appellants are some of the corn producers who took the first

track, filing individual actions. (We call these corn producers the “Kellogg

farmers.”) The Kellogg farmers alleged that their former attorneys had

failed to disclose the benefits of participating as class members, resulting

1 The court certified eight statewide classes and one national class. 2 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 3

in excessive legal fees and exclusion from class proceedings. These

allegations led the Kellogg farmers to sue the attorneys who had provided

representation or otherwise assisted in these cases. The suit against the

attorneys included claims of common-law fraud, violation of the Racketeer

Influenced and Corrupt Practices Act (RICO) and Minnesota’s consumer-

protection statutes, and breach of fiduciary duty.

While this suit was pending in district court, Syngenta settled the

class actions and thousands of individual suits, including those brought by

the Kellogg farmers. The settlement led to the creation of two pools of

payment by Syngenta: one pool for a newly created class consisting of all

claimants, the other pool for those claimants’ attorneys. For this

settlement, the district court allowed the Kellogg farmers to participate in

the new class and to recover on an equal basis with all other claimants.

The settlement eliminated any economic injury to the Kellogg

farmers, so the district court dismissed the RICO and common-law fraud

claims. The court also dismissed the Kellogg farmers’ other claims,

reasoning that

 the Kellogg farmers had failed to allege a public benefit from the claims under Minnesota’s consumer-protection laws,

 the Kellogg farmers’ disobedience of court orders merited dismissal of the claim for breach of fiduciary duty, and

 seven other law firms, which had provided assistance, could not have breached a fiduciary duty because they had no attorney- client agreements with the Kellogg farmers. 3 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 4

The court not only dismissed these claims but also assessed monetary

sanctions against the Kellogg farmers. We uphold these rulings.

Background

I. The Kellogg farmers sue Syngenta and then sue their former attorneys.

Like most of the other corn producers, the Kellogg farmers sued

Syngenta for genetically modifying corn-seed products and commingling

these products in the U.S. corn supply. The Kellogg farmers had intended

to export much of that corn to China, but the Chinese government refused

to import genetically modified corn. That refusal sparked tumbling corn

prices and financial disaster for thousands of corn producers like the

Kellogg farmers. Corn producers reacted by filing thousands of suits

against Syngenta, and the Judicial Panel on Multi-District Litigation

transferred the suits to the District of Kansas for pretrial proceedings.

As the suits progressed, the Kellogg farmers began to reconsider the

benefits of suing individually rather than participating in the class actions.

As the Kellogg farmers reconsidered their litigation strategy, they

suspected their former attorneys of inflating the legal fees by touting

individual actions and concealing the benefits of class litigation. So the

Kellogg farmers retained new counsel and sued in Minnesota federal

district court, asserting claims against their former attorneys and seven

4 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 5

other law firms that had provided legal assistance. That suit was then

transferred to the District of Kansas as part of the multi-district litigation.

II. The Syngenta litigation settles, creating separate pools to compensate the corn producers and their former attorneys.

After the Kellogg farmers sued their former attorneys, the district

court approved a global settlement of the cases involving Syngenta’s

genetically modified corn. The Kellogg farmers acknowledge that the

settlement allowed them to participate equally as members of a newly

created class consisting of all settling claimants. Corn producers in this

class split a settlement pool of roughly $1 billion that Syngenta had paid.

The district court also created a separate pool of about $500 million

for all of the claimants’ attorneys. Given the availability of this pool, the

court prohibited enforcement of any contingency-fee agreements.

Analysis of the Claims Against the Kellogg Farmers’ Former Attorneys

Most of the appellate issues involve the Kellogg farmers’ claims

against their former attorneys. These issues fall into two categories:

1. Arguments that the district judge should have refrained from ruling on certain issues

2. Arguments that the district judge erred in the rulings that he did make

5 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 6

I. The district judge didn’t err in ruling on particular issues.

The Kellogg farmers argue that the district judge erred by deciding

particular issues rather than leaving them for another court or judge.

According to the Kellogg farmers, the district judge

 should not have ruled on the merits because the case had been improperly transferred to the District of Kansas,

 should have recused, and

 lost jurisdiction after the Kellogg farmers had appealed the denial of their motion to recuse.

We reject these arguments.

A. We lack jurisdiction to review the Multi-District Litigation Panel’s transfer of the case to the District of Kansas.

In the Panel’s proceedings, the Kellogg farmers moved to vacate the

transfer to the District of Kansas. The Panel denied the motion and a later

request to reconsider this ruling. The Kellogg farmers ask us to

 direct the Multi-District Litigation Panel to retransfer the case to the District of Minnesota and

 vacate all orders in the District of Kansas.

We lack jurisdiction to consider these requests. 2

2 In their opening brief, the Kellogg farmers devote only one sentence to this argument:

To comply with the § 1407(a) mandate and [the Kellogg farmers’] due process rights to proceed with their federal and Minnesota claims before an impartial judge to protect and preserve their property interest in the Syngenta [multi-district 6 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 7

Federal law expressly prohibits appellate review of the Panel’s denial

of a motion to transfer the case to the originating court. See 28 U.S.C.

§ 1407(e) (“No proceedings for review of any order of the panel may be

permitted except by extraordinary writ . . . .”). Given the statutory

prohibition of appellate review, transfer decisions are reviewable only

through an extraordinary writ. Id.; see In re Morg. Elec. Registration Sys.,

Inc., 754 F.3d 772, 780 (9th Cir. 2014) (concluding that “[m]andamus is

the exclusive mechanism for reviewing [the Multi-District Litigation

Panel’s] orders” and dismissing an appeal for lack of jurisdiction because

the appellants had not sought mandamus); In re Wilson, 451 F.3d 161, 168

(3d Cir. 2006) (“Mandamus is the sole means though which petitioners can

seek review of the [Multi-District Litigation Panel’s] order.”); Grispino v.

New England Mut. Life Ins. Co., 358 F.3d 16, 19 n.3 (1st Cir. 2004) (“The

language of 28 U.S.C. § 1407(e) only permits the courts of appeals for the

litigation] common fund, [the Kellogg farmers] respectfully request that the Court vacate all orders and decisions in the Kellogg lawsuit in the District of Kansas under § 2106 and the Court’s inherent supervisory authority, and direct the [Multi- District Litigation] Panel under §§ 1407 and 2106 and in the interests of justice to return Kellogg to the District of Minnesota.

Appellants’ Opening Br. at 27. For the sake of argument, we assume that this sentence adequately develops an argument that the Panel should not have transferred this case as part of the multi-district litigation. Cf. Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P., 540 F.3d 1143, 1148 n.3 (10th Cir. 2008) (stating that an argument was waived when it consisted of a single sentence in an appeal brief). 7 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 8

transferee court to review the [Multi-District Litigation Panel’s] transfer

decision via the issuance of an extraordinary writ . . . .”); see also In re

Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (“There can be

no doubt therefore that mandamus is an appropriate means of testing a

district court’s § 1404(a) ruling.”). Indeed, the Kellogg farmers themselves

argued in district court: “In 28 U.S.C. § 1407(e), Congress stated that the

only process for ‘review’ of transfer orders is via ‘extraordinary writ’

under 28 U.S.C. § 1651 ‘in the court of appeals having jurisdiction over

the transferee district.’” Class Pls.’ Omnibus Surreply to Mots. to Dismiss

at 14, No. 18-cv-2408-JWL-JPO (D. Kan. Mar. 6, 2019) (emphasis in

original). We have previously denied the Kellogg farmers’ requests for a

writ, and we lack jurisdiction to review the transfer through this appeal. 3

The Kellogg farmers argue that the Supreme Court has allowed

appellate review of a Panel order, citing Lexecon Inc. v. Milberg Weiss

Bershad Hynes & Lerach, 523 U.S. 26 (1998). We disagree with this

interpretation of Lexecon.

Lexecon did not involve a challenge to the Panel’s transfer of a case.

There the Panel had transferred a case for pretrial proceedings. Id. at 31–

32. After these proceedings ended, the transferee court refused to return

3 The Kellogg farmers asked us three times for a writ. When we declined for the third time, the Kellogg farmers asked the Supreme Court for a writ. The Supreme Court also declined to issue a writ. 8 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 9

the case to the initial court, conducted the trial, and entered judgment for

the defendants. Id. at 32. The plaintiff appealed, challenging the transferee

court’s refusal to remand the case to the initial court for trial. Id. The

Supreme Court concluded that the transferee court had to remand the case

to the initial court before the case could go to trial. Id. at 40–42.

Lexecon addressed a federal district court’s refusal to remand a case

after the pretrial proceedings had ended. There the problem arose because

the transferee court had conducted a trial. Our case instead addresses the

validity of the Panel’s transfer order for pretrial proceedings—an issue that

didn’t arise in Lexecon. Given these differences, Lexecon does not apply

and federal law prohibits jurisdiction to consider

 the Panel’s refusal to return the case to the District of Minnesota and

 the Kellogg farmers’ request to vacate all of the District of Kansas’s orders.

B. The district judge acted within his discretion in denying the Kellogg farmers’ motion to recuse.

The Kellogg farmers also argue that the district judge should have

recused. This argument stems from suspicion that the district judge met

privately with the former attorneys to discuss exclusion of the Kellogg

farmers from any proposed class. This suspicion led the Kellogg farmers to

request recusal, and the district judge declined this request. We conclude

that the district judge did not abuse his discretion in declining to recuse.

9 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 10

1. The abuse-of-discretion standard applies to the district judge’s decision not to recuse.

In considering whether a district judge erred in declining to recuse,

we ordinarily apply the abuse-of-discretion standard. Maez v. Mountain

States Tel. & Tel., Inc., 54 F.3d 1488, 1508 (10th Cir. 1995). But the

Kellogg farmers urge de novo review, invoking exceptions when

 the district judge “does not acknowledge the factual evidence” supporting disqualification or

 the claimant alleges a denial of due process.

Appellants’ Opening Br. at 26. In urging these grounds for de novo review,

the Kellogg farmers have misinterpreted our case law.

For the first exception, the Kellogg farmers rely on Sac & Fox Nation

of Oklahoma v. Cuomo, 193 F.3d 1162 (10th Cir. 1999). But they err in

applying the exception recognized in Sac & Fox Nation. There we

conducted de novo review because the district judge had failed to create a

record on the decision not to recuse. Id. at 1168.

That exception lacks any bearing here because the district judge

explained his refusal to recuse. In this explanation, the district judge

 cited caselaw stating that recusal isn’t necessary when a judge acquires knowledge from a related proceeding and

 observed that a party’s disagreement with rulings doesn’t show bias.

Mem. & Order at 12, No. 18-cv-2408-JWL-JPO (D. Kan. Dec. 18, 2019)

(citing United States v. Page, 828 F.2d 1476, 1481 (10th Cir. 1987)). The 10 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 11

judge added that he had not met privately with anyone to discuss exclusion

of the Kellogg farmers. Mem. Op. & Order at 10, No. 18-cv-2408-JWL-

JPO, No. 14-MD-2591-JWL (D. Kan. Apr. 3, 2020). The Kellogg farmers

disagree with this explanation, but disagreement alone doesn’t trigger the

exception: The trigger is the absence of an explanation.

For the second exception, the Kellogg farmers rely on Williams v.

Pennsylvania, 579 U.S. 1 (2016). But there the Supreme Court didn’t

discuss the standard of review for the denial of a motion to recuse. In the

cited discussion, the Court addressed only whether a refusal to recuse

could prevent consideration of harmlessness. Id. at 14. Our issue involves

the standard of review, not harmlessness in the event of an error. 4

Because neither exception governs, we apply the abuse-of-discretion

standard. See p. 10, above.

2. The district judge had discretion to deny the motion for recusal.

The Kellogg farmers challenge their automatic exclusion from the

class actions, arguing that the district judge

 breached a fiduciary duty to them and

 needed to recuse as a result of that breach.

We reject this challenge.

4 The former attorneys argue that a failure to recuse would have constituted harmless error. But we need not address this argument because the district court did not err. See pp. 12–16, below. 11 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 12

According to the Kellogg farmers, they lost the ability to participate

in the class actions because the district judge breached a fiduciary duty to

protect potential class members. It was the district judge, the Kellogg

farmers say, who agreed to their automatic exclusion from the proposed

classes.

Though the Kellogg farmers fault the district judge, he didn’t breach

a fiduciary duty; he simply allowed automatic exclusion based on the

parties’ agreement in the class action proceedings. In those proceedings,

attorneys for some of the corn producers submitted a joint prosecution

agreement. This agreement stated that the proposed class would exclude

the Kellogg farmers and certain other corn producers. Am. and Restated

Joint Prosecution Agreement at 16, In re Syngenta AG MIR 162 Corn

Litig., No. 14-MD-2591-JWL (D. Kan. July 26, 2016).

At a hearing, the district judge stated that he had reviewed the joint

prosecution agreement but did not need to approve it:

It’s a private agreement among private parties . . . .

But I’m not going to approve it and I’m not going to disclose it. I’ve read it. I’m not troubled by it, but I’m not approving it.

Tr. of Hr’g on Sealed Mot. by Pls. for Approval of Joint Prosecution

Agreements at 30, In re Syngenta AG MIR 162 Corn Litig., No. 14-MD-

2591-JWL (D. Kan. Apr. 27, 2015).

12 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 13

Based on the joint prosecution agreement, attorneys for the corn

producers sought certification of classes that excluded the Kellogg farmers

and the other corn producers identified in the joint prosecution agreement.

Sealed Mem. in Support of Producer Pls.’ Mot. to Certify Class, In re

Syngenta AG MIR 162 Corn Litig., No. 14-MD-2591-JWL (D. Kan. June

17, 2016). After conducting a hearing and considering objections, the

district judge found that the exclusions would not create a conflict of

interest or deny due process. Mem. Op. & Order at 29–30, In re Syngenta

AG MIR 162 Corn Litig., No. 14-MD-2591-JWL (D. Kan. Sept. 26, 2016).

Based on these findings, the judge certified classes that excluded the

Kellogg farmers and the other corn producers specified in the joint

prosecution agreement. Id. at 30.

The Kellogg farmers argue that the district judge should have recused

because he had “played a critical role” in the decisions to “[allow] the

automatic opt-outs of Farmers from the Syngenta MDL proceedings

intended by [the Kellogg farmers’ former attorneys] to exploit [the Kellogg

farmers].” Appellants’ Opening Br. at 47. This argument erroneously

assumes that the district judge would need to recuse based on his earlier

decision to allow automatic exclusion from the class action.

This assumption is wrong, for “judges need not ordinarily recuse

after ruling on similar issues in other cases involving the same parties.”

Zen Magnets, LLC v. Consumer Prod. Safety Comm’n, 968 F.3d 1156, 1168

13 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 14

(10th Cir. 2020). To the contrary, “opinions formed by the judge on the

basis of facts introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute the basis for a bias

or partiality motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Liteky v. United

States, 510 U.S. 540, 555 (1994); see also Frey v. EPA, 751 F.3d 461, 472

(7th Cir. 2014) (“[I]nformation a judge has gleaned from prior judicial

proceedings is not considered extrajudicial and simply does not require

recusal.”). The Kellogg farmers haven’t pointed to “deep-seated favoritism

or antagonism” arising from the district judge’s certification of classes

excluding the corn producers identified in the joint prosecution agreement.

To show partiality, the Kellogg farmers point to a declaration by an

expert witness, who urged recusal for three reasons:

1. The district judge might have breached a fiduciary duty by allowing the automatic exclusion without considering the Kellogg farmers’ best interests.

2. The former attorneys might have lied to the district judge about the effect of the automatic exclusion.

3. The district judge might have engaged in ex parte communications with class counsel or the Kellogg farmers’ former attorneys.

In the expert witness’s view, these possibilities required the district judge

to testify why he had allowed the automatic exclusion. But the expert

witness’s speculation does not require the district judge to testify.

14 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 15

We can see for ourselves why the district judge allowed the

automatic exclusion. The proceedings in the class actions included

extensive discussion of the joint prosecution agreement, the scope of the

classes to be certified, and the issues bearing on exclusion of the Kellogg

farmers from these classes. See Tr. of Hr’g on Sealed Mot. by Pls. for

Approval of Joint Prosecution Agreements at 28–30, In re Syngenta AG

MIR 162 Corn Litig., No. 14-MD-2591-JWL (D. Kan. Apr. 27, 2015) (the

district judge’s statements that he had reviewed the joint prosecution

agreement containing provisions for exclusion from the classes); Sealed

Phipps/Clark Pls.’ Mem. in Opp’n to Producer Pls.’ Mot. for Class

Certification, at 18–21, 25–28, In re Syngenta AG MIR 162 Corn Litig.,

No. 14-MD-2591-JWL (D. Kan. July 26, 2016) (attorneys for one group of

corn producers arguing that the joint prosecution agreement had created

conflicting interests among the corn producers). Because the record shows

what the district judge considered and why he ruled as he did, there’s no

need for the judge to testify about his reasoning. 5 See Mem. Op. & Order at

5 The Kellogg farmers contend that opting out is an individual decision, which their attorneys weren’t authorized to make. Some courts have held that class counsel can’t decide whether to allow automatic opt- outs. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024 (9th Cir. 1998) (“The right to participate, or to opt-out, is an individual one and should not be made by the representative or the class counsel.”), overr’d on other grounds, Castillo v. Bank of Am., NA, 980 F.3d 723, 729 (9th Cir. 2020); Sharp Farms v. Speaks, 917 F.3d 276, 299 (4th Cir. 2019) (“[A]llowing representatives to opt out a group of class members would deprive those members of their due-process right to make that choice for themselves 15 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 16

29–30, In re Syngenta AG MIR 162 Corn Litig., No. 14-MD-2591-JWL (D.

Kan. Sept. 26, 2016) (the district judge’s rejection of the challenge to the

automatic exclusion of producers designated in the joint prosecution

agreement).

Nor is testimony needed based on the expert witness’s suspicion of

ex parte communications. In considering the expert witness’s suspicion, we

apply “a presumption of honesty and integrity in those serving as

adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975). So “[m]ere

speculation that an ex parte contact has occurred or that a judge was

affected by it . . . does not warrant relief or further investigation.”

Kaufman v. Am. Family Mut. Ins. Co., 601 F.3d 1088, 1095 (10th Cir.

2010).

The district judge says that he didn’t engage in any ex parte

conversations, and the Kellogg farmers present no reason to question the

district judge’s word. See Livsey v. Salt Lake Cnty., 275 F.3d 952, 957

(10th Cir. 2001) (noting that we usually “[t]ak[e] the district court at its

word”). The district judge thus did not abuse his discretion by declining to

recuse.

. . . .”). Here class counsel didn’t unilaterally decide on the exclusions; the Kellogg farmers’ own attorneys consented. The Kellogg farmers present no reason for a judge to question the attorneys’ authority to consent to their clients’ exclusion from a proposed class. 16 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 17

C. The district court had jurisdiction to proceed while the interlocutory appeal was pending.

Before filing this appeal, the Kellogg farmers had sought

interlocutory review of the district judge’s refusal to recuse. The Kellogg

farmers contend that the district court lost jurisdiction during that appeal.

This contention leads the Kellogg farmers to seek vacatur of thirteen

orders:

1. the district judge’s acceleration of briefing deadlines for a request to schedule a planning conference, Order, No. 18-cv- 02408-JWL-JPO (D. Kan. Jan. 21, 2020)

2. the magistrate judge’s order for supplemental briefing on the district court’s jurisdiction to proceed during the pendency of a petition for rehearing, Order, No. 18-cv-02408-JWL-JPO (D. Kan. Jan. 30, 2020)

3. the district judge’s statement that he would later decide whether to suspend a briefing schedule, Order, No. 18-cv- 02408-JWL-JPO (D. Kan. Jan. 30, 2020)

4. the magistrate judge’s requirement for the Kellogg farmers to participate in a scheduling conference, Order, No. 18-cv- 02408-JWL-JPO (D. Kan. Feb. 4, 2020)

5. the district judge’s denial of a motion to suspend a briefing schedule, Order, No. 18-cv-02408-JWL-JPO (D. Kan. Feb. 4, 2020)

6. the magistrate judge’s order to expedite briefing on a motion for sanctions, Order, No. 18-cv-02408-JWL-JPO (D. Kan. Feb. 12, 2020)

7. the magistrate judge’s cancellation of a scheduling conference, Order, No. 18-cv-02408-JWL-JPO (D. Kan. Feb. 18, 2020)

17 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 18

8. the magistrate judge’s grant of leave to answer the amended complaint out of time, Order, No. 18-cv-02408-JWL-JPO (D. Kan. Feb. 19, 2020)

9. the magistrate judge’s denial of leave to file a surreply on a motion for sanctions, Order, No. 18-cv-02408-JWL-JPO (D. Kan. Feb. 24, 2020)

10. the magistrate judge’s assessment of monetary sanctions and resetting of deadlines, Order, No. 18-cv-02408-JWL-JPO (D. Kan. Mar. 3, 2020)

11. the district judge’s denial of the Kellogg farmers’ motion to vacate orders, recuse, and stay the proceedings, Mem. & Order, No. 18-cv-02408-JWL-JPO (D. Kan. Apr. 15, 2020)

12. the district judge’s assessment of monetary sanctions for filing vexatious motions, Mem. Op. & Order, No. 18-cv-02408-JWL- JPO (D. Kan. Apr. 27, 2020)

13. the district judge’s assessment of monetary sanctions for failing to attend a planning conference, Order, No. 18-cv- 02408-JWL-JPO (D. Kan. Apr. 28, 2020)

We decline to vacate these orders, concluding that the district court did not

lose jurisdiction when the Kellogg farmers appealed the denial of their

motion to recuse.

Some orders are appealable before the issuance of a final judgment.

See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (stating that

denials of qualified immunity are immediately appealable). When a matter

is appealable, the district court loses jurisdiction absent a certification of

frivolousness. Stewart v. Donges, 915 F.2d 572, 577–78 (10th Cir. 1990).

But a party can’t strip the district court of jurisdiction by prematurely

appealing. See Howard v. Mail-Well Envelope Co., 150 F.3d 1227, 1229 18 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 19

(10th Cir. 1998) (“[N]o transfer [of jurisdiction to the appellate court]

occurs if the appeal is taken from a non-appealable order.”).

We’ve disallowed immediate appeals from the denial of a motion to

recuse or disqualify a judge. Lopez v. Behles (In re Am. Ready Mix, Inc.),

14 F.3d 1497, 1499 (10th Cir. 1994). Given the unavailability of an

immediate appeal, we dismissed two of the Kellogg farmers’ previous

appeals. Order at 2, In re Syngenta AG MIR 162 Corn Litig. (Kellogg

Group), No. 19-3066 (10th Cir. Dec. 31, 2019) (dismissing the Kellogg

farmers’ appeal of the district court’s denial of a recusal motion based on

the failure to “establish[] that the district court’s decisions [were] final or

immediately appealable”); Order at 2, In re Syngenta AG MIR 162 Corn

Litig. (Kellogg Group II), No. 20-3006 (10th Cir. May 12, 2020) (“[T]his

court’s case law is clear that ‘[a]n order denying a motion to recuse or

disqualify a judge is interlocutory, not final, and is not immediately

appealable.’” (second alteration in original) (quoting In re Am. Ready Mix,

Inc., 14 F.3d 1497, 1499 (10th Cir. 1994))).

Though disgruntled litigants can’t appeal the denial of a motion for

recusal, they can seek mandamus. Nichols v. Alley, 71 F.3d 347, 350 (10th

Cir. 1995). And the Kellogg farmers did seek mandamus. See Order, In re

Kenneth P. Kellogg, et al., Nos. 20-3051, 20-3070 & 20-3084 (10th Cir.

June 1, 2020) (denying the Kellogg farmers’ petition for a writ of

mandamus). But the filing of a mandamus petition didn’t divest the district

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court of jurisdiction. See Nascimento v. Dummer, 508 F.3d 905, 910 (9th

Cir. 2007) (“[P]etitions for extraordinary writs do not destroy the district

court’s jurisdiction in the underlying case.”); Clark v. Taylor, 627 F.2d

284, 288 (D.C. Cir. 1980) (“[T]he trial court had not lost its jurisdiction

because the appellate court was entertaining an application for writ of

mandamus.”).

The Kellogg farmers cite Arthur Andersen & Co. v. Finesilver, 546

F.2d 338 (10th Cir. 1976), for the proposition that once the appeal was

filed, the Tenth Circuit obtained jurisdiction. But in Arthur Andersen, we

pointed out that a district court can proceed when the appeal involved a

non-appealable order. Id. at 340–41. So under Arthur Andersen, the district

court did not err by proceeding.

The Kellogg farmers also assert that by proceeding with the case, the

district court committed a due process violation under Stewart v. Donges,

915 F.2d 572 (10th Cir. 1990). But Stewart addressed only the loss of

jurisdiction when a party appeals an order deciding qualified immunity,

which is immediately appealable, not when a party appeals a non-

appealable order like the denial of a request for recusal. See id. at 573. So

Stewart does not apply, and the district court did not violate due process

by proceeding with the case. 6

6 In a letter submitted under Fed. R. App. P. 28(j), the Kellogg farmers state that the district court’s order was immediately appealable as a denial 20 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 21

II. The Kellogg farmers’ substantive challenges are either moot or invalid.

The Kellogg farmers also challenge the rulings that the district court

did make.

A. The RICO and common-law fraud claims are moot.

The district court dismissed the claims under RICO and common-law

fraud, reasoning that the Kellogg farmers had not suffered an injury-in-

fact. The Kellogg farmers disagree with the dismissals, relying on their

contingency-fee agreements and inability to participate in any of the class

actions.

Under the mootness doctrine, an actual controversy must exist

throughout the case. An actual controversy requires

 an injury-in-fact,

 “a sufficient causal connection between the injury and the conduct complained of,” and

 a “likelihood that the injury will be redressed by a favorable decision.”

Brown v. Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016) (internal

quotation marks omitted). The kind of injury-in-fact required for an actual

of an injunction. But this was the first time that the Kellogg farmers suggested that the district court’s refusal to recuse would have constituted a denial of an injunction, and we don’t consider new arguments raised in a 28(j) letter. See Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013). Even if we were to consider the new argument, the Kellogg farmers haven’t explained or supported their characterization of the ruling as a denial of an injunction. 21 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 22

controversy depends on the elements of the claim. See Transunion LLC v.

Ramirez, 141 S. Ct. 2190, 2204 (2021).

“If an intervening circumstance deprives the plaintiff of a personal

stake in the outcome of the lawsuit, at any point during litigation, the

action can no longer proceed and must be dismissed as moot.” Campbell-

Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (internal quotation marks

omitted). Intervening circumstances arose here, implicating the

requirements of a claim involving RICO and common-law fraud.

These claims required the Kellogg farmers to prove an economic

injury. See Tal v Hogan, 453 F.3d 1244, 1253 (10th Cir. 2006) (stating that

a RICO action requires proof of an injury to business or property); Hoyt

Props. Inc., v. Prod. Res. Group, L.L.C., 736 N.W.2d 313, 318 (Minn.

2007) (stating that a common-law fraud claim requires proof of pecuniary

damage). But the Kellogg farmers’ alleged economic injury vanished when

the district court

 prohibited the Kellogg farmers’ former attorneys from enforcing the contingency-fee agreements and

 allowed the Kellogg farmers to participate in the class settlement on an equal basis with all other corn producers.

With the disappearance of an economic injury, the RICO and common-law

fraud claims became moot.

Despite the disappearance of an economic injury, the Kellogg farmers

contend that the district court 22 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 23

 considered the wrong time-period,

 disregarded the fees that their former attorneys had collected based on the contingency-fee agreements,

 failed to consider the case against their attorneys as a separate lawsuit, and

 ignored statutes that establish standing.

We conduct de novo review and reject these arguments. See Niemi v.

Lasshofer, 770 F.3d 1331, 1344 (10th Cir. 2014) (de novo review).

1. The district court properly considered events after the suit had been filed.

The Kellogg farmers view an injury-in-fact as something that we

consider only when the suit begins. And when the Kellogg farmers sued,

they allegedly had an economic injury from their obligations under the

contingency-fee agreements. But a case or controversy must remain

throughout the litigation. See Phelps v. Hamilton, 122 F.3d 1309, 1315

(10th Cir. 1997) (“[A] plaintiff must maintain standing at all times

throughout the litigation for a court to retain jurisdiction.” (quoting

Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477, 1485 (10th Cir.

1995))).

The case or controversy on the RICO and common-law fraud claims

ended when the Kellogg farmers settled with Syngenta. So the district

23 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 24

court did not err by considering the settlement even though it took place

after the Kellogg farmers had sued their former attorneys.

2. The attorney fees from the settlement do not constitute an injury-in-fact for the claims under RICO and for common- law fraud.

The Kellogg farmers urge an ongoing injury because their former

attorneys ultimately profited from their contingency-fee agreements. But

the former attorneys profited from the attorney-client relationships, not the

contingency-fee agreements. Those relationships allowed the attorneys to

recover settlement fees from Syngenta; but those fees came at the expense

of Syngenta, not the Kellogg farmers, because the settlement had created

two pools. In one pool, the district court had awarded roughly $1 billion to

the Kellogg farmers and thousands of other corn producers. The court had

also created a separate pool, containing roughly $500 million, to

compensate the attorneys. See p. 5, above.

24 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 25

The tradeoff was that the attorneys couldn’t collect anything outside their

awards from the second pool. Mem. Op. & Order at 21–22, No. 14-MD-

2591-JWL (D. Kan. Dec. 31, 2018) (MDL Dkt. No. 3882); In re Syngenta

AG MIR 162 Corn Litig., 357 F. Supp. 3d 1094, 1115 (D. Kan. 2018). 7

The attorneys could seek payment from the second pool based on the

amount of their clients’ losses. So the Kellogg farmers’ former attorneys

7 In the amended complaint, the Kellogg farmers asked the court to cap their former attorneys’ contingency fees “at zero” to equalize the assessment of attorney fees and expenses. Am. Class Action Compl. for Declaratory and Injunctive Relief and Damages at 10, ¶ 20, No. 18-cv- 02408-JWL-JPO (D. Kan. Nov. 13, 2018). The district court effectively granted this cap by prohibiting attorneys from collecting anything under their contingency-fee agreements.

25 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 26

used those losses when calculating the payouts from the second pool. But

that pool was divided only between attorneys; the attorneys’ payouts from

the second pool couldn’t affect the amount paid to the Kellogg farmers or

any other corn producers. So the payouts could not cause an economic

injury to the Kellogg farmers on their claims involving common-law fraud

or RICO. 8

The Kellogg farmers argue that the entire settlement (including the

pool of funds allotted to the attorneys) belonged to the class members. But

the Kellogg farmers waived this argument by

 failing to sufficiently brief it and

 presenting it too late.

The Kellogg farmers waived this appellate argument by failing to

develop a reason to disturb approval of the settlement, which had created

the separate pools for corn producers and attorneys. The Kellogg farmers’

opening brief states only that their “share of the Syngenta [multi-district

litigation] common fund is [their] property.” Appellants’ Opening Br. at 38

(emphasis omitted). This one-sentence contention doesn’t adequately

present an argument that the $500 million attorney-fee pool belonged to

the corn producers. See Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P.,

8 The Kellogg farmers appear to recognize that their common-law fraud and RICO claims wouldn’t affect their own recovery under the settlement, as they argue that “[i]t is the process that matters, not the outcome.” Appellants’ Opening Br. at 44. 26 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 27

540 F.3d 1143, 1148 n.3 (10th Cir. 2008) (stating that an argument is

waived when it consists of a single sentence in an appeal brief).

Even if the Kellogg farmers had developed an argument to upend the

settlement, this argument would have come too late. The Kellogg farmers

didn’t appeal the order approving the global settlement. See Hawkins v.

Evans, 64 F.3d 543, 546 n.2 (10th Cir. 1995) (rejecting an attempt to

collaterally attack an order in a previous case that had not been appealed).

Nor did they raise the argument in district court when responding to their

former attorneys’ motion to dismiss.

The Kellogg farmers instead raised this argument for the first time

when seeking vacatur of the district court’s judgment. But a motion to

vacate the judgment doesn’t allow parties to present new arguments that

could have been raised earlier. See Lebahn v. Owens, 813 F.3d 1300, 1306

(10th Cir. 2016) (“[A] Rule 60(b) motion is not an appropriate vehicle to

advance new arguments or supporting facts that were available but not

raised at the time of the original argument.” (citing Cashner v. Freedom

Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996))). The district court thus

acted properly by declining to consider the Kellogg farmers’ new argument

involving the class members’ ownership of the settlement funds.

27 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 28

3. The Kellogg farmers didn’t show an injury-in-fact from the existence of a separate suit involving property interests.

The Kellogg farmers also point to the Multi-District Litigation

Panel’s distinction between the Kellogg farmers’ suit against their former

attorneys and the suits against Syngenta. According to the Kellogg farmers,

the Panel’s distinction served as recognition of an injury-in-fact.

We disagree. The Panel was just saying that the dispute between the

Kellogg farmers and their former attorneys would need to be resolved

through separate litigation rather than an objection to the global

settlement. The Panel didn’t comment on the existence of an injury-in-fact.

The Kellogg farmers also characterize their claims as “choses in

action,” triggering property interests under the Fifth Amendment.

Regardless of this characterization, however, the Kellogg farmers lost a

stake in the outcome when the district court nullified the contingency-fee

agreements and allowed equal participation in the settlement.

4. Federal statutes did not create an injury-in-fact.

The Kellogg farmers also argue that RICO and the declaratory-

judgment statute confer standing. It’s true that “Congress may create a

statutory right or entitlement the alleged deprivation of which can confer

standing to sue even where the plaintiff would have suffered no judicially

cognizable injury in the absence of statute.” Warth v. Seldin, 422 U.S. 490,

514 (1975). But Congress’s authority to create an entitlement doesn’t

28 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 29

scuttle the need for an injury-in-fact. See TransUnion v. Ramirez, 141 S.

Ct. 2190, 2200 (2021).

The two federal statutes being invoked (RICO and the declaratory-

judgment statute) don’t automatically confer an injury-in-fact. RICO

expressly requires an injury to “business or property.” 18 U.S.C.

§ 1964(c); see Tal v. Hogan, 453 F.3d 1244, 1254 (10th Cir. 2006). And

the declaratory-judgment statute requires the claimant to separately show

an injury-in-fact. See 28 U.S.C. § 2201(a) (stating that a court can issue a

declaratory judgment “[i]n a case of actual controversy”); Cardinal Chem.

Co. v. Morton Int’l, Inc., 508 U.S. 83, 95 (1993) (“[A] party seeking a

declaratory judgment has the burden of establishing the existence of an

actual case or controversy.” (citation omitted)).

Despite the lack of statutory support for an ongoing case or

controversy, the Kellogg farmers argue that the district court disregarded

the separation of powers by dismissing the claims under RICO and the

Declaratory Judgment Act. This argument is waived and invalid. It’s

waived because the Kellogg farmers didn’t present this argument in district

court or ask us to apply the plain-error standard. See United States v.

Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). And the argument is invalid

because statutory claims—like other claims—can become moot. See, e.g.,

Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477, 1480, 1484–85

29 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 30

(10th Cir. 1995) (concluding that claims brought under the Declaratory

Judgment Act and another federal statute had become moot).

* * *

We thus conclude that the district court properly dismissed the

claims involving common-law fraud and RICO. These claims became moot

because the Kellogg farmers had no economic injury.

B. The district court acted within its discretion by sanctioning the Kellogg farmers through dismissal of their claim for breach of fiduciary duty.

The district court also sanctioned the Kellogg farmers by dismissing

their claim involving breach of fiduciary duty, and the Kellogg farmers

challenge that dismissal. We conclude that jurisdiction existed and the

district court did not abuse its discretion.

1. Jurisdiction existed in district court despite the absence of an economic injury.

We again must address jurisdiction, considering whether the Kellogg

farmers alleged an injury-in-fact. Though the Kellogg farmers suffered no

economic injury, none was required for a claim involving breach of a

fiduciary duty. See Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d

209, 212 (Minn. 1984) (“[Minnesota] law treats a client’s right to an

attorney’s loyalty as a kind of ‘absolute’ right in the sense that if the

attorney breaches his or her fiduciary duty to the client, the client is

deemed injured even if no actual loss results.”); see also Rice v. Perl, 320

30 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 31

N.W.2d 407, 411 (Minn. 1982) (allowing a client to recover the

compensation paid to an attorney who breached a duty of loyalty).

Because economic injury wasn’t required, a legally protected interest

existed based on Minnesota’s recognition of a right to an attorney’s

loyalty. See St. Paul Fire & Marine Ins. Co., 345 N.W. 2d at 212

(concluding that clients have a right to an attorney’s loyalty under

Minnesota law). The alleged invasion of that interest constituted an injury-

in-fact. See In re Facebook, Inc., Internet Tracking Litig., 956 F.3d 599,

600–01 (9th Cir. 2020) (concluding that the availability of a disgorgement

action under state law would establish a legally protected interest that

suffices for Article III standing).

Given the allegation of an injury-in-fact, we consider the former

attorneys’ other jurisdictional challenges. The former attorneys argue that

recovery couldn’t benefit the Kellogg farmers because forfeiture of the

attorney fees would result only in the distribution of additional fees to

other attorneys rather than to other producers. We disagree. The district

court explained that even though it “may have necessarily found that

attorneys for farmers in the underlying litigation deserved fees (for work

benefitting the settlement class),” “the [c]ourt did not find . . . that

attorneys [had] never breached any duty of loyalty while representing

farmers throughout the entire course of the underlying litigation.” Mem. &

Order at 14, No. 18-cv-2408-JWL-JPO D. Kan. Dec. 18, 2019). So breach

31 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 32

of a duty of loyalty could trigger an award to the Kellogg farmers. See Perl

v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209, 212 (Minn. 1984).

2. The district court didn’t abuse its discretion in sanctioning the Kellogg farmers by dismissing the claim for breach of fiduciary duty.

The court sanctioned the Kellogg farmers by dismissing their claim

for breach of fiduciary duty, reasoning that the Kellogg farmers and their

new counsel had “repeatedly, obstinately refused to accept the Court’s

rulings or to comply with its orders, even after warnings that continued

noncompliance could result in dismissal.” Mem. Op. & Order at 1, No. 18-

cv-02408-JWL-JPO (D. Kan. July 28, 2020).

The Kellogg farmers challenge the dismissal, and we review

 the dismissal for an abuse of discretion and

 the underlying factual findings for clear error.

See Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992) (abuse-of-

discretion standard); Olcott v. Dela. Flood Co., 76 F.3d 1538, 1551 (10th

Cir. 1996) (clear-error standard).

The Kellogg farmers previously filed two premature appeals. After

we dismissed the first one, the district court tried to move the case along.

The court started by ordering a discovery planning conference.

The Kellogg farmers’ new attorney refused to participate, stating that

the district court lacked jurisdiction. The Kellogg farmers then filed a

32 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 33

second notice of appeal and applied for a writ of mandamus, again

challenging the district court’s refusal to recuse.

The magistrate judge set a date for the planning conference, but the

Kellogg farmers’ new attorney failed to attend and again moved for recusal

and vacatur of every ruling made during the pendency of the prior appeal.

When the new attorney failed to appear at the discovery planning

conference, the former attorneys moved for sanctions, including dismissal.

The magistrate judge declined to recommend dismissal, but ordered the

Kellogg farmers to pay the fees and expenses incurred by the former

attorneys to attend the earlier discovery planning conference.

The magistrate judge scheduled a second discovery planning

conference, warning the Kellogg farmers’ new attorney that failure to

attend or participate would result in a recommendation of dismissal. The

new attorney attended the second conference by telephone. But he refused

to budge, announcing that he would not participate in discovery or pretrial

preparation until our court decided the new appeal and request for

mandamus.

The Kellogg farmers also filed a second motion for recusal without

addressing the district court’s reasons for denying the first motion. The

district court required the Kellogg farmers to pay the attorney fees and

expenses that the former attorneys had spent to respond to the second

recusal motion. The Kellogg farmers failed to pay these sanctions.

33 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 34

Given the Kellogg farmers’ disregard of these orders, the former

attorneys obtained sanctions consisting of dismissal with prejudice on the

sole remaining claim (breach of fiduciary duty). In imposing this sanction,

the court considered five pertinent factors: “(1) the degree of actual

prejudice to the other party; (2) the amount of interference with the

judicial process; (3) the litigant’s culpability; (4) whether the court warned

the [offending] party in advance that dismissal would be a likely sanction

for noncompliance; and (5) the efficacy of lesser sanctions.” Mem. Op. &

Order at 8, No. 18-cv-02408-JWL-JPO (D. Kan. July 28, 2020) (quoting

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1140–41

(10th Cir. 2007)). In the district court’s view, each factor supported

dismissal.

In responding to the district court’s assessment, the Kellogg farmers

contend that the district judge had a conflict of interest and lacked

jurisdiction to proceed during the pendency of the appeal. We’ve elsewhere

rejected these contentions. See pp. 10–20, above.

The Kellogg farmers also argue that

 the failure to pay the monetary sanctions could have been addressed by other means, like the posting of a bond or execution of the judgment, and

 bad faith is necessary for a dismissal with prejudice.

We reject both arguments.

34 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 35

The district court could have enforced the monetary sanctions

through a bond or execution of a judgment. But the court reasonably

viewed lesser sanctions as futile given the Kellogg farmers’ refusal to pay

the monetary sanctions. So the court did not abuse its discretion in

dismissing the claim with prejudice.

The Kellogg farmers also argue that dismissal is appropriate only

when a party acts in bad faith. We disagree.

Although dismissal is a harsh sanction, it may be appropriate in cases

of “willfulness, bad faith, or some fault.” Chavez v. City of Albuquerque,

402 F.3d 1039, 1044 (10th Cir. 2005) (emphasis added) (cleaned up); see

also Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172,

1174 (10th Cir. 1995) (“[D]ue process requires that the discovery violation

be predicated upon willfulness, bad faith, or some fault of [the] petitioner

rather than inability to comply.” (cleaned up)). So the district court can

impose dismissal when a defendant willfully disobeys orders. See Willner

v. Univ. of Kan., 848 F.2d 1023, 1030 (10th Cir. 1988).

The magistrate judge found that the Kellogg farmers had “willfully

refus[ed] to participate in the litigation before th[e] court.” Order at 8, No.

18-cv-02408-JWL-JPO (D. Kan. Mar. 3, 2020). The district judge upheld

this ruling. Mem. & Order at 2–3, No. 18-cv-02408-JWL-JPO (D. Kan.

Apr. 15, 2020). The magistrate judge and the district judge had discretion

to find willful disregard of their orders. See Ehrenhaus v. Reynolds, 965

35 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 36

F.2d 916, 921 (10th Cir. 1992). We review their factual findings for clear

error, see id., and see none here.

The Kellogg farmers insist that bad faith is required for dismissal,

relying on Societe Internationale pour Participations Industrielles et

Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958). We disagree. In

Societe Internationale, the Supreme Court invalidated a dismissal because

compliance with the underlying order might have violated Swiss law. Id. at

204, 208–12.

No similar impediment prevented the Kellogg farmers from

complying with the district court’s order. And in Societe Internationale,

the Supreme Court reiterated that noncompliance with a court order could

justify dismissal when there is “willfulness, bad faith, or . . . fault” on the

petitioner’s part. Id. at 212 (emphasis added).

The district court reasonably based the sanction of dismissal on

prejudice to the former attorneys, interference with the judicial process,

culpability, warnings to the Kellogg farmers, and ineffectiveness of lesser

sanctions. In applying these considerations, the court acted within its

discretion.

C. The district court did not err in dismissing the Minnesota statutory claims based on the failure to allege a public benefit.

The district court also dismissed claims under three Minnesota

statutes:

36 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 37

1. Minnesota Consumer Fraud Act, Minn. Stat. § 325F.69, subd. 1

2. Minnesota False Statement in Advertising Act, Minn. Stat. § 325F.67

3. Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. §§ 325D.43–48

The Kellogg farmers challenge these dismissals, and we reject the

challenges.

1. The district court had jurisdiction over these claims.

The threshold issue involves jurisdiction, which requires an injury-

in-fact. See Part II(B)(1), above.

An injury-in-fact requires

 “an invasion of a legally protected interest” and

 a harm that is “concrete and particularized” and “actual or imminent . . . .”

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992)).

The Kellogg farmers adequately alleged an injury-in-fact. The

attorneys’ alleged conduct included deceptive statements that deprived the

Kellogg farmers of an opportunity to make informed decisions about the

Syngenta litigation. See Appellants’ App’x vol. II, at 153–59. Based on

these allegations, the Kellogg farmers have adequately alleged the invasion

of a legally protected interest because Minnesota law recognizes a

protected interest in the loyalty of one’s attorneys. See Perl v. St. Paul

37 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 38

Fire & Marine Ins. Co., 345 N.W.2d 209, 212 (Minn. 1984) (allowing a

client to recover the compensation paid to an attorney who breached a duty

of loyalty); see also State v. Minn. v. Sch. of Bus., Inc., 935 N.W. 2d 124,

138–39 (Minn. 2019) (allowing recovery for equitable restitution to divest

a wrongdoer of improper profits). The Kellogg farmers’ interest is legally

protected even if they can’t recover under the Minnesota statutes. See Duke

Power v. Carolina Envtl. Study Grp., 438 U.S. 59, 78–79 (1978); see also

WildEarth Guardians v. United States Bureau of Land Management, 870

F.3d 1222, 1232 (10th Cir. 2017) (“Our own precedents indicate that the

legal theory and the standing injury need not be linked as long as [the

injury-in-fact is likely to be redressed by a favorable decision].”).

Given the allegations of statutory violations involving disloyalty, the

Kellogg farmers have adequately alleged a legally protected interest and a

harm that is “concrete and particularized” and “actual and imminent.”

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992)). So we have jurisdiction over the

statutory claims.

2. The Kellogg farmers fail to adequately develop an appellate argument on public benefit.

Given jurisdiction, we consider the Kellogg farmers’ challenge to the

dismissals. The Kellogg farmers had brought these claims under

Minnesota’s private-attorney-general statute, Minn. Stat. § 8.31 subd. 3a.

38 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 39

Under this statute, a private right-of-action exists only if successful

prosecution of the claim would benefit the public. Ly v. Nystrom, 615

N.W.2d 302, 314 (Minn. 2000).

Recovery might benefit the public when a merchant broadcasts a

fraudulent advertisement and makes “numerous sales and information

presentations” to the public. Collins v. Minn. Sch. of Bus., 655 N.W.2d

320, 330 (Minn. 2003). In contrast, recovery doesn’t benefit the public

when the claimant is defrauded in a “single one-on-one transaction.”

Nystrom, 615 N.W.2d at 314.

In the amended complaint, the Kellogg farmers allege that

 their former attorneys chose a harmful litigation strategy in order to maximize their own attorney fees and

 recovery from the former attorneys would benefit the 60,000 farmers and consumers in Minnesota who rely on an honest, ethical market for legal services.

The district court considered these allegations and concluded that they

hadn’t created a public benefit. Mem. & Order at 6–9, No. 18-cv-2408-

JWL-JPO (D. Kan. Aug. 13, 2019), adhered to in part on reconsideration,

Mem. & Order at 9–11, No. 18-cv-2408-JWL-JPO (D. Kan. Dec. 18, 2019).

For this conclusion, the court reasoned that

 the Kellogg farmers had mainly sought forfeiture of attorney fees to compensate for past wrongs rather than to stop ongoing misconduct,

 the pursuit of class-wide claims hadn’t necessarily provided a public benefit, and 39 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 40

 the alleged misrepresentations had targeted a specific group within a specific industry.

Id.

The Kellogg farmers sought reconsideration, arguing that for a public

benefit, “the Minnesota Supreme Court only requires a determination of

whether Defendants are engaged in misrepresentations to the public

through advertisement.” Class Pls.’ Mem. in Support of Mots. to (1)

Correct a Clerical Error in the August 13, 2019 Mem. and Order, (2)

Vacate the Substantive Rulings, (3) Certify a Question to the Minnesota

Supreme Court, and (4) Vacate All Orders at 14–15, No. 18-cv-02408-

JWL-JPO (D. Kan. Sept. 10, 2019). The district court rejected this

argument, reasoning that the Kellogg farmers hadn’t alleged a

misrepresentation to the public at large. Mem. & Order at 10–11, No. 18-

cv-2408-JWL-JPO (D. Kan. Dec. 18, 2019).

In their opening appeal brief, the Kellogg farmers present an

argument consisting of only a single sentence, asserting that the district

court “disregard[ed] binding Minnesota Supreme Court precedent that the

only requirement for application of the Minnesota business and consumer

protection claims is a determination of whether the [attorneys] engaged in

misrepresentations to the ‘public at large’ through advertisements, etc.”

Appellants’ Opening Br. at 41 (emphasis in original) (quoting Collins, 655

N.W.2d 320). Nowhere do the Kellogg farmers address the district court’s 40 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 41

reasoning, which treated the alleged misrepresentations as made to a

specific group rather than the public at large. By failing to develop an

argument that the district court erred, the Kellogg farmers waived a

challenge to dismissal of the statutory claims. See Murrell v. Shalala, 43

F.3d 1388, 1389 n.2 (10th Cir. 1994) (“[P]erfunctory [allegations of error]

fail to frame and develop an issue sufficient to invoke appellate review.”).

Given this waiver, we affirm the dismissal of the three statutory claims. 9

9 The district court noted that one of the statutes (the Minnesota Uniform Deceptive Trade Practices Act) contains its own provision for a private right-of-action. So the requirement of a public benefit might not apply to that claim. Nevertheless, the Kellogg farmers relied only on the private-attorney-general statute to bring their claims under the Minnesota Uniform Deceptive Trade Practices Act. So the district court concluded that

 “the claim as pleaded [wa]s subject to dismissal,”

 even if the Kellogg farmers had asserted a claim through the Minnesota Uniform Deceptive Trade Practices Act rather than the private-attorney-general statute, the claim would have been futile because the Act provides only injunctive relief, and

 the Kellogg farmers had not alleged ongoing deception of other consumers.

Mem. & Order at 6–10, No. 18-cv-2408-JWL-JPO (D. Kan. Aug. 13, 2019), adhered to in part on recons., Mem. & Order at 9–11, No. 18-cv-2408- JWL-JPO (D. Kan. Dec. 18, 2019). The Kellogg farmers have not challenged the district court’s reasoning on the alleged violation of the Minnesota Uniform Deceptive Trade Practices Act. The failure to present a separate challenge constitutes a waiver. See Navajo Nation v. San Juan Cnty., 929 F.3d 1270, 1281 (10th Cir. 2019) (finding a waiver when an appellant failed to explain how the district court’s reasoning was wrong).

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D. The district court did not abuse its discretion in assessing monetary sanctions against the Kellogg farmers.

The Kellogg farmers also challenge monetary sanctions imposed by

the magistrate judge and the district judge.

The magistrate judge assessed sanctions against the Kellogg farmers

for failing to obey a scheduling order and permit discovery. 10 The district

judge assessed sanctions under 28 U.S.C. § 1927 for unreasonably and

vexatiously multiplying the proceedings. Mem. & Order at 5–6, No. 18-cv-

02408-JWL-JPO (D. Kan. Apr. 15, 2020). The § 1927 sanctions were based

on costs that the former attorneys had incurred in responding to the

Kellogg farmers’ motion to vacate and recuse. We review these sanctions

for an abuse of discretion. See Farmer v. Banco Popular of N. Am., 791

F.3d 1246, 1256 (10th Cir. 2015).

In challenging the monetary sanctions, the Kellogg farmers argue

that they had legitimate grounds to object to the district court proceedings

and to refuse to participate until we decided their interlocutory appeal. The

district court had the discretion to regard these objections as illegitimate.

If the Kellogg farmers had questioned the validity of the district

court’s order for a discovery conference, “they could have sought

reconsideration or a writ; but they could not violate the order.” Auto-

10 The Kellogg farmers objected to the magistrate judge’s monetary sanctions, but the district judge overruled the objections. Mem. Op. & Order, No. 18-cv-02408-JWL-JPO (D. Kan. Apr. 3, 2020). 42 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 43

Owners Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 863, 867 (10th

Cir. 2018); see also Maness v. Meyers, 419 U.S. 449, 458–59 (1975)

(stating that a party must comply with an order (in the absence of a stay)

even when the party questions the validity of an order). And the Kellogg

farmers lacked a reasonable basis to question the validity of the district

court’s initiation of discovery because we’d already dismissed a virtually

identical appeal as premature. Order at 2, In re Syngenta AG MIR 162 Corn

Litigation (Kellogg Group), No. 19-3066 (10th Cir. Dec. 31, 2019); see

also Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497, 1499 (10th

Cir. 1994) (stating that orders denying recusal are not immediately

appealable). 11

We’ve held that jurisdiction continues in district court when a party

prematurely appeals. See Howard v. Mail-Well Envelope Co., 150 F.3d

1227, 1229 (10th Cir. 1998) (stating that a non-appealable order does not

transfer jurisdiction from the district court to the appellate court). The

Kellogg farmers’ new attorney flouted these holdings and obstructed the

proceedings by refusing to comply with the district court’s orders.

11 The Kellogg farmers assert that the district court imposed the sanctions as “an adversarial response . . . to [their] efforts to disqualify the district court through the interlocutory appeal and mandamus petition[].” Appellants’ Opening Br. at 55. For this assertion, the Kellogg farmers provide no support.

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That attorney did attend the second planning conference and

announce his position. But he still refused to proceed with a discovery

plan, which stymied the district court’s ability to advance the case. See

Dietz v. Bouldin, 579 U.S. 40, 41 (2016) (noting a district court’s “inherent

power to . . . manage its docket and courtroom with a view toward the

efficient and expedient resolution of cases”). The magistrate judge and the

district judge thus had a reasonable basis to find obstructive conduct. 12

The Kellogg farmers also argue that sanctions may be imposed only

after the case had ended. For this argument, the Kellogg farmers rely on

Steinert v. Winn Group, Inc., 440 F.3d 1214 (10th Cir. 2006). But Steinert

holds only that § 1927 sanctions may be imposed after final judgment. Id.

at 1223. The case does not prevent sanctions while the case is proceeding,

and the district court acted properly in imposing sanctions before entering

the final judgment.

We thus conclude that the district court did not abuse its discretion

in imposing monetary sanctions.

12 The Kellogg farmers say that they couldn’t “be charged with a failure to prosecute” during their interlocutory appeal and application for mandamus relief. Appellants’ Reply Br. at 5. But the district court didn’t suggest a failure to prosecute the action; the court instead imposed sanctions based on a failure to comply with orders.

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Analysis of the Claims Against the Seven Other Law Firms

The Kellogg farmers sued not only their own former attorneys but

also seven law firms that had assisted. 13 For the dismissal of these claims,

we engage in de novo review, using the standard that applied in district

court. BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co., 830 F.3d

1195, 1200 (10th Cir. 2016). In district court, the applicable standard was

the one governing motions to dismiss under Fed. R. Civ. P. 12(b)(6):

whether the amended complaint contained factual allegations creating a

reasonable inference of liability. See Ashcroft v. Iqbal, 556 U.S. 662, 663

(2009); BV Jordanelle, 830 F.3d at 1200–01.

The Kellogg farmers argue that they could bring claims against the

seven law firms because they had been listed in the contingency-fee

agreements. 14 For this argument, the Kellogg farmers invoke

 Minnesota Rule of Professional Conduct 1.5(e), which requires attorneys to accept joint responsibility under fee-sharing agreements, and

 the opinion of an expert witness, who concluded that all of the attorneys listed on the contingency-fee contracts had violated their fiduciary obligations to the Kellogg farmers.

13 The seven other law firms are Hovland and Rasmus, PLLC; Dewald Deaver, P.C., LLO; Patton Hoverson & Berg, P.A.; Wojtalewisz Law Firm, Ltd.; Johnson Law Group; VanDerGinst Law, P.C.; and Wagner Reese, LLP. 14 The Kellogg farmers also argue that they could bring these claims in a representative capacity. But the district court did not dismiss these claims based on an inability to sue in a representative capacity. 45 Appellate Case: 20-3172 Document: 010110716257 Date Filed: 07/26/2022 Page: 46

We reject this argument. The district court granted judgment on the

pleadings to the seven law firms after terminating all but the Minnesota

claim for breach of fiduciary duty. Under Minnesota law, however, an

attorney bears no fiduciary duty to a non-client. See McIntosh Cnty. Bank

v. Dorsey & Whitney, LLP, 745 N.W.2d 538, 545 (Minn. 2008). And the

Kellogg farmers were not clients of these seven law firms. So these law

firms had owed no fiduciary duty to the Kellogg farmers, and the district

court properly granted judgment on the pleadings to the seven law firms.

The Kellogg Farmers’ Additional Motions

The Kellogg farmers have filed a motion entitled “Motion for

Judicial Notice or, in the Alternative to Supplement the Record on

Appeal.” They have also filed a second motion for judicial notice of other

documents.

These motions concern the fee awards received by the former

attorneys as part of the global settlement in the suits against Syngenta. The

Kellogg farmers ask us to (1) take judicial notice of demands that the

former attorneys deposit the attorney fees into an escrow account until this

case is resolved or (2) supplement the record with these demands. The

Kellogg farmers also seek vacatur of the district court’s rulings and return

of the case to the District of Minnesota. These motions lack merit.

Even though the Kellogg farmers demand an escrow account for the

collection of forfeited attorney fees, this demand does not affect our

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analysis of mootness, recusal, public benefit, or sanctions. So our analysis

moots the demand for an escrow account.

Our analysis also moots the Kellogg farmers’ repetition of their

arguments for vacatur and transfer of the case to the District of Minnesota.

We’ve elsewhere rejected these arguments. See pp. 6–9, 17–20, above.

We thus deny the Kellogg farmers’ motions .

Conclusion

We lack appellate jurisdiction to review the Multi-District Litigation

Panel’s transfer of the case to the District of Kansas and reject the Kellogg

farmers’ procedural challenges involving recusal and jurisdiction in

district court. And we affirm

 the dismissal of the claims involving common-law fraud and RICO based on mootness,

 the sanctions requiring monetary payment and dismissing the claim for breach of fiduciary duty,

 the dismissal of the claims under Minnesota’s private-attorney general statute, and

 the award of judgment on the pleadings to the seven law firms lacking contractual ties to the Kellogg farmers.

Finally, we deny the Kellogg farmers’ motion for judicial notice or

supplementation of the record.