This post is not legal advice.
Time is running out for Delaware and Maryland producers to make a decision on staying in the current Syngenta AG MIR162 Corn Litigation or opting out to pursue individual claims against Syngenta. Currently, Delaware and Maryland corn producers have until April 1, 2017, to make this decision.
In 2010, Syngenta received approval to begin selling seeds containing the MIR162 genetic event and began selling those seeds in 2011. In 2013, the genetic event appeared in shipments to China, and the Chinese had yet to approve the genetic event. The Chinese began to reject shipments of U.S. corn, and the price of corn fell. Producers who did not grow the MIR162 genetic event began to file lawsuits against Syngenta. A judicial panel combined the lawsuits into one federal district court and in late 2016, the court granted class certification for nine classes.
The one class important to Delaware and Maryland producers is the nationwide class. To be a member of the class a producer needs to be listed on an FSA-578 Form, Report of Acreage Form, and have not purchased Duracade or Viptera corn seed, and priced corn after November 23, 2013. If you meet these requirements, you are automatically a member of the nationwide class and should have received a letter notifying you of the class certification.
Bellwether trials are scheduled to begin in June, 2017. Bellwether trials are representative trials chosen to help determine the strengths and weaknesses of each sides cases, how juries will react, and applications of the law. After the bellwether trials, parties will either continue the lawsuits or seek a settlement.
Between now and April 1, 2017, producers will have to decide whether to remain in the class, which requires no action, or opting out of the class, which requires returning a form. What to do will require individual producers to make a decision that works for him/her.
Remaining in the lawsuit makes a class member essentially a plaintiff in the class action suit. Unlike a typical plaintiff, a class member will not have to do anything to move the lawsuit forward and represented by the named plaintiffs and their counsel. The named plaintiffs and their counsel are the ones who will make strategic decisions in the litigation. If the named plaintiffs settle the class action lawsuit, then the court would have to approve that settlement and class members would be allowed to vote to approve or oppose the settlement. An approved settlement or a resolution by the court would potentially require class members to prove entitlement to a portion of the fund. For example, producers may have to show some bushels marketed after November 18, 2013.
Class members can also opt out of the class-action lawsuit. By opting out, a producer would no longer be apart and can bring separate claims against Syngenta. Bringing his/her own lawsuit would allow the producer to select counsel and bring a suit based on individual circumstances. Bringing a lawsuit would mean additional costs (attorneys’ costs and experts’ costs) and time.
What To Do
I make no opinion or give no advice on what to do. The decision is up to each producer. Producers will want to weigh the pros and cons of participating in the class action lawsuit or opting out. Producers may consider receiving advice from an attorney licensed in your state. But this decision will have to be made before April 1, 2017.