Dicamba Legal Update: What Is Going On In the Ninth Circuit And What Is Going On With the Drift Class Action

Image of sprayer spraying soybeans. Image by United Soybean Board

This is not a substitute for legal advice.

            Dicamba has been back in the news lately in several areas.  EPA recently moved to cancel registrations for three dicamba products, XtendiMax, Engenia, and FeXapa, based on a ruling in the Ninth Circuit.  Growers have till the end of July 2020 to use existing stocks.  And Bayer, the parent company of Monsanto, recently announced settlement of around $400 million for class-action lawsuits filed against possible drift damage caused by the company’s XtendiMax product.  Although details of that settlement will not be known for a while, let’s step back and get a sense of what this means for growers.

What are the dicamba drift lawsuits about?

            Producers experiencing dicamba drift damage brought the current In re Dicamba Herbicides Litigation against the manufacturers of the dicamba-based herbicides XtendiMax and Engenia. With the federal claims, the plaintiffs argue that Monsanto and BASF Corporation violated § 1125(a) of the Lanham Act in marketing both XtendiMax and Engenia dicamba-based herbicides. The plaintiffs also allege that state claims focused on negligence claims in product design, failure to warn of negligence in the design, failure to warn of the dangers, and poor training sales of representatives for the two dicamba-based herbicides.

            Only one of the federal lawsuits has gone to trial on similar claims in In re Dicamba Herbicides Litigation. A federal jury in Bader Farms, Inc. v. Monsanto Co. awarded a Missouri peach grower $265 million in damages, $15 million in actual damages, and $250 million punitive damages. The defendants are currently appealing this decision.

Image of sprayer boom. Image by United Soybean Board

What is in the settlement?

            The exact terms of the settlement are currently unknown.  The plaintiffs and defendants have agreed in principle to settle claims of yield losses due to dicamba damage from 2015 to 2020.  About $300 million of the settlement will cover specific losses to soybean growers during that period.  Another $100 million of the settlement will go towards non-soybean damage and include the plaintiffs’ attorneys’ fees.

Who will be eligible?

            What still is not known is how broad the eligibility will be.  We do not know if this will be nationwide or limited to the class action lawsuit states.  As mentioned above, we currently know the settlement will cover yield losses due to drift damage from 2015 to 2020.  We will have to wait for the final settlement agreement to be announced to get more details on eligibility.

How will you apply?

            How to apply is another good question for which we currently do not have an answer.  When the final settlement agreement is announced we will  get a sense of the timeline for eligibility.  Since this settlement includes the 2020 crop year, we can assume that signup would not even start until after completing the 2020 harvest to allow time to determine potential damage.  Because the settlement is based on yield damage, we can assume  you will need to submit crop insurance documentation or have calibrated yield monitoring data to verify this yield loss due to dicamba drift damage.

How does this relate to the on-going lawsuit in the Ninth Circuit Court of Appeals?

            The recently announced settlement  and the lawsuit in the Ninth Circuit Court of Appeals are related in the sense that they both include many of the same dicamba-based herbicide products, and that is about it.  As mentioned earlier, the class action settlement is based around federal claims that the defendants violated the Lanham Act and state law-based tort claims.  The claims in the Ninth Circuit are related to EPA’s approval of the 2018 registration for BASF, Bayer, and Corteva dicamba-based herbicide products.

            Based on the court’s vacatur of that registration, EPA has moved to cancel the three dicamba-based herbicides’, XtendiMax, Engenia, and FeXapa, registrations.  Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA only has authority to either cancel or suspend federal pesticide registrations.  With a suspension or cancellation, EPA can set the conditions on which canceled or suspended pesticides can be sold, distributed, or used. 

            Looking forward, the 2018 registrations for these three products would have expired later this year.  EPA will need to consider the Ninth Circuit’s ruling in the process to reregister these three products.  We will have to watch this process to see if the products are reregistered in time for the 2021 growing season.

Where Are My Syngenta Settlement Payments: Checks Going Out by Summer 2020 (Hopefully)

This post is not legal advice.

Farmer harvests  corn in Queen Anne's County, Md.  Image is by Will Parson/Chesapeake Bay Program.
Farmer harvests  corn in Queen Anne’s County, Md. Image is by Will Parson/Chesapeake Bay Program.

 

           A number of you continue to ask me when you might see settlement checks from the Syngenta corn seed settlement. In late 2018, the court approved the settlement order for the $1.51 billion MIR162 Syngenta settlement. Based on the final order, payments to producers should have started going out in the second quarter of 2019. Payments did not go out. On January 3, 2020, the federal district court in Kansas gave final approval to the settlement. There is one last step for growers is to provide the claims administrator with an IRS W-9 form either online or by mailing a form into Corn Seed Settlement Program Claims Administrator, P.O. Box 26226, Richmond, Virginia 23260.

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Year in Review: 2018 Ag Law Developments

Image of White Fence by Zach Stern via flickr.com

This is not a substitute for legal advice.

With 2018 over and 2019 underway, I want to take a minute to look back at many of the top legal developments impacting agriculture in 2018. Many of these legal developments may seem like repeats from my 2017 update; click here. For those interested embedded above is a join podcast episode I did with Tiffany Lashmet covering the top ag law developments. With those repeated issues, in many cases, we have seen resolutions, and we will probably continue to see litigation further develop with a few problems in 2019. Moving into 2019, we will likely see new issues emerge as a new Farm Bill is implemented and further developments in the international trade area. If you have not already signed up for updates, see the bottom of this post or any post on this site to get email updates sent to you as new content is available. Continue reading

Eligible Corn Growers and Landlords Begin Filing Syngenta Settlement Claims in May

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Corn harvest with combine dumping onto grain cart.  Image  by United Soybean Board.

This post is not legal advice.

On April 10, 2018, a federal district court judge granted preliminary approval to the $1.51 billion MIR162 Syngenta settlement. This settlement, reached in September 2017 and officially announced in March 2018, would settle claims by U.S. farmers for Syngenta bringing Viptera and Duracade corn varieties to market before approval in China. This approval means corn growers region will begin to see formal notices hitting their mailboxes in May, and the claims process will begin. Corn growers and eligible landlords will be able to file claims electronically beginning May 11, 2018, at www.cornseedsettlement.com, or by calling 1-833-567-CORN(2676) to request a paper form. Corn growers and eligible landlords will need to file a claim by October 12, 2018. Continue reading

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. Continue reading

2017 in Review: Legal Developments In Agriculture

 

2017 ag law developments

Image in photo from powerpoint slide developed by FPPT.com

 

With 2017 coming to an end, I want to take a minute to look back at many of the top legal developments impacting Maryland agriculture in the year. Many of these legal developments may seem like repeats from my 2016 update, click here to see. With those repeated issues, we in many cases have seen resolutions in a few, and with others, we will probably continue to see litigation further develop with a few issues in 2018. Moving into 2018, we will probably see new issues develop as we look at a new Farm Bill debate and cycle potentially starting.  You can listen to Tiffany Lashmet and I discuss many of these top legal developments on our joint podcast episode, click here. Continue reading

Proposed Settlement of Claims Against Syngenta May Not Apply to Maryland and Delaware Corn Growers, But A Future Settlement Will Settle Claims Nationwide

 

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Grain silos with bare field.  Image by Jeannette E. Spaghetti via Flickr.com

 

Disclaimer:   Paul does not take any position on the claims asserted against Syngenta or on whether producers join in a  class action lawsuit against Syngenta.  This article is for informational purposes only.

On September 26, 2017, Syngenta agreed to settle claims brought by U.S. farmers for bringing Viptera and Duracade corn varieties to market before approval in China. News of the settlement came after weeks of a trial involving about 22,000 Minnesota corn growers seeking $400 million in damages, following a settlement in June where a jury awarded over 7,000 Kansas corn growers $218 million in damages. While terms of this late September settlement are currently unknown, reports are that Syngenta is seeking to establish a fund of around $1.5 billion to settle this ongoing litigation. These class action lawsuits currently involve corn growers who priced corn after November 18, 2013, and who did not purchase Viptera or Duracade corn varieties.
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Arkansas Producers File Class Action Lawsuit Related to Dicamba Drift Damage

 

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Sprayer in field by the United Soybean Board.

2016 and 2017 have seen large numbers of complaints filed of drift damage in the Midwest and South. The drift damage is due to dicamba application on new Monsanto varieties of cotton and soybeans that allow for over-the-top applications of dicamba. I’ve written earlier about a dicamba drift class action lawsuit filed in Missouri, but a recently filed one in the Eastern Federal District of Missouri. The new class action is being brought by a group of Arkansas farmers who planted older varieties of soybean and cotton that was not resistant to dicamba. Continue reading

Forthcoming Article: Adapting to the Changing World of Biotechnology: Syngenta AG MIR162 Corn Litigation as Regulation-By-Litigation

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In late 2016, I got the opportunity to speak at the Texas A&M Law Review’s Symposium on Agriculture, Intellectual Property, and Feeding the World in the 21st Century. During the symposium, I spoke on a panel with Andrew Morton, Morton Farms, and Prof. Joanna Sax, Professor of Law, California Western School of Law, and the panel was moderated by my former ag law professor, Drew Kershen, Earl Sneed Centennial Professor of Law Emeritus, University of Oklahoma, College of Law. Continue reading

Corn Producers in Maryland and Delaware Have Till April 1 to Decide Stay or Opt Out of the Syngenta AG MIR162 Corn Litigation

 

kinsey_road_corn_harvest

Image by Nyttend via wikicommons

 

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. Continue reading