Syngenta Announces $1.51 Billion Dollar Settlement to MIR162 Class Action Suit

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Corn being harvest in a field by a combine.  Image is by the United Soybean Board.

The article is not a substitute for legal advice.

In September 2017, Syngenta agreed to settle claims brought by U.S. farmers for bringing Viptera and Duracade corn varieties to market before approval in China. On March 12, 2018, Syngenta formally announced that it would be settling all U.S. corn growers, grain handlers, and ethanol plant claims. This settlement, from media reports, will include all U.S. corn farmers including those who opted out of the original class action suit and those who grew Agrisure Duracade Corn and/or Agrisure Viptera corn varieties. The settlement will be for a period starting after September 15, 2013, and continue through the 2018 crop year. You are not required to retain an attorney to assist you in collecting on this settlement.

The settlement will include four classes defined as:

  1. Growers who did not use Duricade or Viptera,
  2. Growers who did use Duricade or Viptera,
  3. Grain handlers, and
  4. Ethanol producers.

Claims to three of the four classes will be limited in the amount that can recover.

  1. Class 2 will be limited to $22.6 million,
  2. Class 3 will be limited to $29.9 million, and
  3. Class 4 will be limited to $19.5 million.

Class 1 will receive a minimum of $1.44 billion. A bulk of the settlement will go to the growers who did not grow Duricade or Viptera corn seeds. If a person qualifies in two classes (for example you grew Duracade seed one year but not in other years) you are permitted under terms of the proposed settlement to collect as long as no duplicative recovery is collected. The settlement will not allow for recovery on silage or fed on-farm corn.

Producers in Class 1 and Class 2 will prove the amount they are entitled to recover

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Combine dumping corn into grain cart while harvesting.  Image by United Soybean Board

by using USDA’s Form FSA 578. Form 578 determines the producer’s corn acreage minus any failed acres and silage acres. This acreage will be multiplied by the county average yield for the marketing year reported by NASS deducting the percentage of bushels fed on the farm reported by the producer, multiplying by the marketing year weighted average to get the recovery amount for that marketing year.

 

The weighted averages for each market year are:

  1. 2013/14 – 26%
  2. 2014/15 – 33%
  3. 2015/16 – 20%
  4. 2016/17 – 11%
  5. 2017/18 – 10%

The weighted averages represent damage impact determined by the Plaintiffs’ economic experts during the Kansas trial. For example, if a producer seeking recovery had reported 100 acres on her FSA Form 578 with a county yield of 150 bushels per acre and no silage or fed on-farm corn reported in marketing year 2014/15. The producer is entitled to in 2014/15 a compensable recovery quantity of 4,950 bushels in 2014/15 marketing year. At this time, a dollar value is unknown on that compensable recovery quantity. The recovery method for the other two classes (grain handlers and ethanol producers) will follow a different format. This overview will not cover those recovery methods.

Judge Lungstrum must still approve the settlement. If approved, a fund will be created to pay claims to farmers (possibly in early 2019). Ten days after approval of the settlement the first notice will be sent out. A producer will have 90 days after the first notice is mailed to opt-out of the settlement. Many growers may have already opted out of the class action, but will potentially need to opt-out again based on the language of the proposed settlement agreement. Claims are paid within 150 days of the first notice being mailed out. To notify corn growers, a mailing list of U.S. producers who received corn subsidy payments from USDA from 2013-2017 was obtained from USDA. The attorneys will also look at buying additional mailing lists of corn growers from ethanol plants and grain handlers.

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