Syngenta Pursues Appeal

OMAHA (DTN) -- Syngenta is challenging a federal judge's ruling that creates a major class of farmers who could have been damaged as part of the ongoing lawsuit on Viptera corn.

Syngenta filed an appeal last week with the Tenth Circuit Court of Appeals in Denver over a case in which corn farmers are seeking more than $5 billion in damages against the company.

"The decision below certified nine classes collectively seeking over $5 billion in damages on novel and dubious theories that Chinese rules on genetically modified (GM) traits for corn seeds should have dictated defendants' practices in the U.S.," Syngenta stated in its request for appeal.

Syngenta is dealing with multiple lawsuits claiming the company should have inspected and prevented harvested Viptera (MIR 162) corn from being shipped to China in 2013 and 2014. Plaintiffs in the case allege Syngenta sold Agrisure Viptera and Duracade, causing significant losses to corn farmers across the country.

All farmers in the United States who priced corn for sale after Nov. 18, 2013, were approved as a major class in the ongoing lawsuit filed against Syngenta, according to an order issued by a judge in the U.S. District Court in Kansas last month.

The class of farmers established will remain in place and the lawsuit will continue until or when the appeals court renders a decision, said Donald Swanson, an attorney with Omaha-based Koley Jessen PC, who has followed and written about the case for Iowa State's Center for Agricultural Law and Taxation.

Since Syngenta is asking for permission to appeal, Swanson said the 10th Circuit has a number of options.

The court could deny the request to appeal, grant the request but then certify the district court's class certification order, or the court could grant the request for permission to appeal but then reverse the district court's class certification order.

In its filing, Syngenta argued the lower court judge made "fundamental errors on issues of law that this court has not resolved and that are vitally important for defining the nature of the 'rigorous analysis' required" under class-action litigation. Further, attorneys for Syngenta said that creating a nationwide class of farmers for the case wasn't fair because it would include farmers who weren't actually harmed by the trade dispute.

"This case is literally unprecedented given the guarantee that these tens of thousands of cases will remain separate from the class," Syngenta said in the challenge.

That is because the appeal and legal wrangling does not involve the case brought by farmers who actually bought Viptera or Duracade seed. They are tied up in a separate class of farmers. Nor does the 10th Circuit case include more than 20,000 other farmers who sued in a Minnesota state court.

The court fights began for Syngenta 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

(CC/AG)

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