Some clarification on the Syngenta lawsuit

Many of you have been contacted by attorneys regarding a class action filed by farmers against Syngenta. Here is some clarification.

April 1, 2017 is the deadline to opt out of the class action filed by farmers against Syngenta that is pending in federal court in Kansas City, Kansas, if a corn producer wishes to proceed against the company directly. Ohio farmers may qualify for two classes of the nine established by the federal judge overseeing the action — a nationwide class and an Ohio class. While there are other class actions against Syngenta pending in other jurisdictions and hundreds of other individual lawsuits, the Kansas City case seems to be the primary action.

At the risk of sounding like a lawyer, please do not consider this column legal advice. If you are interested in more information, please speak with an attorney directly about your individual situation. It appears that there will be many legal professionals, suddenly interested in corn production and marketing, happy to assist you. Identify the differences between the legal exposure and costs as well as benefits associated with being a class member and an individual plaintiff.

The trouble allegedly all began when Syngenta Seeds, Inc., owned by Syngenta AG, a Swiss-based agri-business that owns several American agricultural technology companies, developed MIR 162, an insecticidal trait that addressed “true armyworm” issues in Agrisure Viptera in 2010. The U.S. approved this advancement, as did most U.S. trading partners, including Canada, Japan, Argentina, and the European Union. China, however, did not.

At the same time, the Chinese market for corn exploded. In 2010-2011, the Chinese purchased 979,000 metric tons. One year later, the total was 5.2 million metric tons. In November 2013, China began rejecting U.S. corn shipments stating that the shipments contained traces of Agrisure Viptera. At the same time, the U.S. corn and soybean markets began a sharp decline. Some assert that China’s rejection of inappropriate GM corn was an important factor.

In 2014, farmers filed suit in federal court in Kansas City, requesting certification as a class. The primary claims were (1) Syngenta violated the Lanham Act by misleading its stakeholders, the public and the government, about the status of its GM corn and its action in releasing it to the market. (2) Syngenta breached its duty of care to Plaintiffs by prematurely commercializing the GM corn trait, without reasonable safeguards and by instituting a careless and ineffective “stewardship” program which insured contamination of the U.S. corn supply.

The case has progressed with farmer friendly results so far. On Sept. 26, 2016, the federal judge certified the class action. The Tenth District Court of Appeals denied Syngenta’s appeal of the class certification in December, 2016. Trials are scheduled to begin this summer.

Attorneys love class actions because this is one of the few scenarios in the American legal system where their fees are paid by the defendant, should the Plaintiffs prevail at trial. Civil litigators love class actions because oftentimes the claims that exist for the class can also be made by individual plaintiffs in cases outside the class action, so long as the plaintiff opts out of the class. This phenomenon has led to an excessive amount of fancy written solicitations appearing in our mailbox, and my husband has not sold corn for at least 40 years. I even received an inappropriate phone solicitation from a lawyer who should know better. He was confused when I explained that yes we raised corn but no we did not sell it. What does he think we feed our cows? My parents have not raised corn in decades, but they received fancy offers as well.

I do not have a dog in this hunt. While I am sympathetic to farmers who are angered about lowered commodity prices, I am also concerned that the allegations in the class action mirror much anti-GMO sentiment. What if these lawsuits have a negative impact on GMO development?

This case also raises many other issues. Should a country, such as China, wield regulatory power over the products companies can sell in America? Is compliance with U.S. law sufficient or can foreign countries dictate product requirements? What if these production requirements are rooted in pure economic interest (as is likely to be the case with China)? Who should bear the risk in a global marketplace?

Also, what happens if the hundreds of lawsuits Syngenta is now facing cause the company to go bankrupt? And was China’s refusal of U.S. corn alleging traces of Syngenta technology somehow part of ChemChina, a state-owned enterprise, and their acquisition of Syngenta AG that is currently underway?

I have many questions, but no easy answers. I also wonder how the plaintiffs in any case regarding Syngenta plan to prove proximate cause. This is a huge stumbling block in many civil suits. Proximate cause is a legal term that means an event is efficiently related to a legally recognizable injury to be held to be the cause of that injury. Given all the factors that impact the corn market, how do you prove that China’s actions were the proximate cause of the corn market decline? Especially when the soybean market was also dropping?

After spending time Googling and reading up on Syngenta, I realize my feelings about the matter are similar to my reaction to the last major league baseball strike (and I love baseball). This is millionaires arguing with billionaires over money. I just hope that all of the lawyers chasing farmers for representation against Syngenta will be similarly motivated should farmers need help with debt reorganization and actions against creditors.

Let justice prevail.

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