Corn farmers file seven class actions against Syngenta

By Kyla Asbury | Oct 15, 2014

CHICAGO (Legal Newsline) - Corn farmers have filed seven class action lawsuits against Syngenta Corporation in five states for allegedly releasing a genetically-engineered corn seed prematurely.

Syngenta Corporation, Syngenta Crop Protection LLC and Syngenta Seeds Inc. prematurely released MIR162 corn seed, also known as Agrisure Viptera, into the U.S. market before the seed received import approval from China, according to seven complaints filed in various federal courts in Illinois, Nebraska, Kansas, Iowa and Missouri on Oct. 3 and Oct. 6.

"Corn production is of crucial economic importance to the United States," the complaints state. "The U.S. is ranked first in the world in total corn production and exports a significant amount of its production."

The U.S. corn marketing system is commodity-based, which means that the corn grown by farmers is harvested, gathered, commingled, consolidated and otherwise shipped from thousands of farms to local, regional and terminal distribution centers, according to the suits.

The plaintiffs claim from there, it is often transported by exporters to foreign countries. In order to maintain the stability of the corn marketing and distribution system, it is vital that the U.S. corn supply and exports maintain the highest standards of purity and integrity.

"Syngenta is...in the business of developing and selling, in interstate commerce, corn seed which includes certain genetically engineered traits," the complaints state. "After development, Syngenta licenses its genetically-engineered corn seed to seed manufacturers, including Syngenta’s subsidiaries, who then sell it to farmers."

In 2009, Syngenta released a genetically engineered corn trait, MIR162, into the U.S. market, according to the suits. The first generation of MIR162 corn was known as "Agrisure Viptera" and the second generation of Syngenta’s MIR162 corn was known as "Agrisure Duracade" and was released, sold and distributed for planting in 2014.

The plaintiffs claim Agrisure varieties have been genetically engineered to protect corn against damage from insects such as the corn borer and corn rootworm. While the seed has been approved by the United States, Brazil, Argentina and various other countries, Syngenta submitted the corn trait to the Chinese government for approval in March 2010, but it has not been approved for sale in that country.

"China’s growing population and middle class have created a significant demand for U.S. products," the complaints state. "China, long a key importer of other U.S. crops, has now become a major corn buyer as well."

China purchased an estimated 5 million tons of U.S. corn in 2012-13, up from 47,000 tons in 2008, making China the third largest export market for U.S. corn, according to the United States Department of Agriculture statistics. China was on track to meet or exceed these numbers in 2013-14, the complaints say.

The plaintiffs claim given that MIR162 corn has not been approved in China, however, as of November, China has stopped importing U.S. corn when it detects traces of MIR162 in U.S. corn shipments. China has also given no indication of when, or if, it will approve Syngenta’s genetically engineered seed.

MIR162 corn was only planted on about three percent of U.S. acres for the last two seasons, the complaints said.

"While only a very small percentage of U.S. farmers plant MIR162 corn, the level of MIR162 corn planted is too high to ensure that any shipment of U.S. corn will not be contaminated with trace amounts of MIR162 after corn has been commingled and consolidated for export," the complaints state.

As a result of China’s prohibition on the importation of MIR162 corn, even in trace, low-level amounts, and Syngenta’s decision to continue marketing MIR162 to a small minority of U.S. corn farmers – the vast majority of U.S. corn has been effectively excluded from what was previously the third-largest export market for U.S. corn, causing U.S. farmers significant damages as corn prices have dropped from the loss of China’s export markets, according to the suits.

The plaintiffs claim although it knew that it lacked approval from Chinese authorities, Syngenta has misinformed farmers, grain elevators, grain exporters and the general public into believing that regulatory approval of MIR162 corn from China was imminent and that the lack of Chinese approval would not impact the corn market prices.

"Syngenta’s decision to bring Viptera to the market crippled the 2013/14 corn export market to China and caused damage to plaintiff[s] and other class members," the complaints state. "Syngenta knew, or should have known, that releasing Viptera would lead to the contamination of U.S. corn shipments and prevent U.S. corn from being sold to export markets such as China, which had not granted regulatory approval to MIR162."

Following this widespread harm, Syngenta’s decision to release Duracade again illustrates that Syngenta has acted in reckless disregard of the consequences of inflicting widespread harm to the U.S. corn market, according to the suits.

The plaintiffs claim Syngenta’s conduct, as further detailed herein, has caused lost sales and income to the plaintiff and other class members in excess of $1 billion.

The defendants violated the Lanham Act, their actions constitute as a public nuisance and they were negligent, according to the suits.

The plaintiffs are: Dan Moll; Luke Claas, Meinke Farms, Terry Meinke, Pete Meinke, Kenny Meinke and Troy Meinke; Cronin Inc. and Jim Ruba Jr.; Volnek Farms Inc.; Munson Brothers Farm, Daryl Sondgeroth, Matthew Sondgeroth and Union Line Farms Inc.; Jesse Briggs, Briggs Brothers, Old River Farms, Big Mo Farms Partnership, Big Bayou Meto Farms and Cole Briggs Farms; and Haden Farms Inc.

The plaintiffs are seeking class certification and monetary damages. They are beig represented by Robert A. Horn and Joseph Kronawitter of Horn Aylward & Bandy LC; Thomas V. Bender of Walters Bender Strohbehn & Vaughan PC; Adam J. Levitt and Edmund S. Aronowitz of Grant & Eisenhofer PA; James J. Pizzirusso, Mindy M. Pava and Richard S. Lewis of Hausfeld LLP; Thomas Patterson of Patterson & Prahl LLP; Martin J. Phipps of Phipps Cavazos PLLC; Clayton A. Clark and Scott A. Love of Clark Love Hutson; Klint Bruno of the Bruno Law Firm; Kim Stephens and Jason T. Dennett of Tousley Brain Stephens PLLC; and Paul D. Lundberg of Lundberg Law Firm PLC.

The cases are assigned to Illinois federal judges Harry D. Leinenweber, Staci M. Yandle and Sue E. Myerscough; Nebraska District Judge Richard G. Kopf; Kansas federal judge John W. Lungstrum; Iowa federal judge Mark W. Bennett; and Missouri federal judge Nanette K. Laughrey.

U.S. District Court for the District of Kansas case number: 2:14-cv-02497; U.S. District Court for the Western District of Missouri case number: 2:14-cv-04267; U.S. District Court for the Central District of Illinois case number: 3:14-cv-03302; U.S. District Court for the Southern District of Illinois case number: 3:14-cv-01072; U.S. District Court for the Northern District of Illinois case number: 1:14-cv-07806; U.S. District Court for the District of Nebraska case number: 8:14-cv-00305; U.S. District Court for the Northern District of Iowa case number: 5:14-cv-04084

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.

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