Some Viptera Claims Tossed

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — A federal judge last week dismissed claims made by a group of farmers in a class action lawsuit against Syngenta that the company should have done something to inspect and keep harvested Viptera and Duracade GMO MIR162 corn from being shipped to China.

The action was at least a partial victory for Syngenta. However, multiple lawsuits challenging the company on its handling of the GMO corn will continue, according to a legal expert who has been following the cases.

The U.S. District Court for the District of Kansas ruled negligence claims involving inspections are pre-empted by the Grain Standards Act. The 1916 act requires all grain sold in foreign commerce to be inspected and graded.

Donald L. Swanson, an attorney with Omaha-based Koley Jessen PC, LLO, who has followed and written about the case for Iowa State’s Center for Agricultural Law and Taxation, told DTN the court’s ruling removes one of numerous claims still to be adjudicated.

"They’re moving this case along rapidly," Swanson said. "The ruling limits the claims. It does not terminate the lawsuit. This kind of legal wrangling is very typical. It is limiting the scope and focus of the case."

At present, the lawyers and judge in the case are taking part in the pleadings and discovery phases simultaneously, he said. The plaintiffs in the case have made numerous allegations of facts claiming multiple legal standards have been breached, Swanson said.

"Let’s just say hypothetically there are a dozen claims made," he said. "The defendant is saying we want to limit the number of claims that go to trial. We’re going to try to knock out one at a time. In this case, they were successful. This is for Syngenta, a partial victory."

The latest ruling also dismisses the separate claims of a group of farmers called the "Phipps plaintiffs" represented by Phipps Anderson Deacon, LLP based in San Antonio, Texas, who had their claims consolidated in the Kansas federal court. A number of other agribusinesses including Gavilon Grain, Archer Daniels Midland Company, Bunge North America, Cargill, Inc. and Louis Dreyfus Company, also had filed motions to dismiss the claims made by the same plaintiffs.

DTN’s attempts to reach attorneys for the Phipps farmers were unsuccessful.

Syngenta faces an ongoing legal battle after developing MIR162 genetic traits marketed under the brand name Viptera and in Viptera/Duracade stacks. USDA deregulated the products in 2013 and Syngenta moved ahead to commercially sell the seeds even though MIR162 had not been approved in China. In November 2013, China began rejecting any U.S. corn exports that tested positive for MIR162. That went on until China eventually approved the trait in December 2014.

The official lawsuits filed on behalf of corn producers include cases in Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas and Wisconsin.

Plaintiffs have claimed Syngenta misled the public and made misrepresentations to the public and USDA concerning the status and likelihood of Chinese approval and their effects on export markets. Plaintiffs also claimed Syngenta’s actions increased the risks of contamination and commingling of corn.

In a statement to DTN, Syngenta hailed last week’s ruling as a victory.

"The Aug. 17 ruling in the Viptera China lawsuits significantly narrows the case against Syngenta," the company said. "For example, the ruling confirms that federal law bars ‘any claim against Syngenta based on a duty to make sure that Viptera corn is segregated from other corn.’ The court also agreed with Syngenta that ‘there is no basis for Syngenta’s liability based in false representations or omissions of fact in communications with plaintiffs,’ and, therefore, rejected plaintiffs’ claim for negligent misrepresentation.

"Although the litigation will continue to proceed, this is an important step forward as we continue to defend the rights of American farmers to have access to safe, effective, U.S.-approved agricultural technologies like Agrisure Viptera."

The goal for Syngenta in the legal proceedings, Swanson said, is to essentially eliminate all of the legal claims in the case, while the plaintiffs are working to put at least one claim before a jury.

Swanson said there remains a class of farmers in Minnesota pursuing a class action suit likely to play out in state court in Minnesota.

According to court documents there are about 2,375 cases involving more than 20,000 plaintiffs pending in the Fourth Judicial District of Hennepin County, Minnesota.

Although the case is "convoluted, complex and difficult," Swanson said, chances are there will be a number of trials before it is resolved.

"My sense is they’re working at this hard," he said. "They have to work through pleadings and discovery then through some bellwether trials, actual jury trials- maybe a dozen of them – then there will be a resolution to the case."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(SK/AG)