Court Sets GMO Class

Some Farmers Excluded From Action in Lawsuit Against Syngenta

Syngenta genetically engineered MIR162 corn to resist above-ground pests. The corn entered the U.S. market in 2010 under the brand name Agrisure Viptera. (DTN file photo by Pam Smith)

OMAHA (DTN) -- All farmers in the United States who priced corn for sale after Nov. 18, 2013, have been approved as a major class in the ongoing lawsuit filed against Syngenta, according to an order issued by the U.S. District Court for the District of Kansas Monday.

Multiple lawsuits filed claim the company should have inspected and prevented harvested Viptera (MIR 162) corn from being shipped to China. Plaintiffs in the case allege Syngenta sold Agrisure Viptera and Duracade, causing significant losses to corn farmers across the country.

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 farmers simply need to sit back and wait for the lawsuit to play out.

"This means the plaintiffs in the Syngenta case will be pursuing the lawsuit on behalf of all producers," Swanson said.

"If plaintiffs are successful in achieving a recovery, all producers within the certified class definition will be able to receive funds from the recovery without bringing their own lawsuits. It's a blanket thing. No immediate action is needed. Producers should keep watch for any recovery that might be achieved in the future. If and when funds are recovered in the future, producers will then need to file claims against that fund."

According to the court order, a "producer" is someone listed "as a producer on an FSA-578 form filed with" USDA. There are some groups of producers excluded from the nationwide class, Swanson said.

Those excluded from the nationwide class include producers who bought Viptera or Duracade corn seed and producers who filed suit in a Minnesota state court. Court documents show there are about 2,375 cases involving more than 20,000 plaintiffs pending in the Fourth Judicial District of Hennepin County, Minnesota.

Attorneys for Syngenta argued in a hearing that creating a nationwide class of farmers wasn't appropriate because it could include producers who weren't actually harmed.

"Those are merits-based defenses, however, and there is no basis to conclude that a 'great number' of members could not have been harmed as alleged by plaintiffs," the court said in its order.

In a statement to DTN Tuesday, Syngenta said it disagrees with the court setting a nationwide class of farmers.

"Syngenta respectfully disagrees with this ruling, particularly given the widely varying ways in which farmers grow and sell corn in different markets across the U.S.," the company said in a statement.

"The court did not rule that plaintiffs' claims actually have merit. Syngenta is considering its appellate options. Syngenta firmly believes that the Viptera China lawsuits should be rejected and that Agrisure Viptera was commercialized in full compliance with regulatory and legal requirements. We will continue to defend the rights of American farmers to have access to safe, effective, U.S.-approved agricultural technologies like Agrisure Viptera."

Swanson said farmers who are part of the nationwide class likely will at some point receive notices in the mail.

"You know how you get notices in the mail every now and then that a class action has achieved a recovery and that you can mail in a claim to receive some of those funds?" he said. "This is like that."

In August, the court dismissed claims made by a group of farmers that the company should have done something to inspect and keep harvested Viptera and Duracade corn from being shipped to China.

The court 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.

Syngenta faces an ongoing legal battle after developing MIR162 genetic traits marketed under the brand name Viptera. USDA deregulated Viptera in 2010 and Syngenta first commercialized it in 2011. Syngenta moved ahead to commercially sell the seeds even though they have not been approved in China. In November 2013, China began rejecting any U.S. corn exports that tested positive for MIR162.

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.

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

Follow him on Twitter @toddneeleyDTN

(GH/PS/AG)