Farmers in New York State are being advised to take legal action against a Swiss agrochemical company that is being accused of mishandling the marketing of its genetically modified corn seed.
“New York farmers have been ripped off,” said attorney M. Scott Barrett, an Albion native who is a partner in Barrett Wylie LLC of Bloomington, Ind.
Barrett and Albion lawyer Conrad Cropsey are part of a four-attorney team available to represent New York corn growers who may have been affected by circumstances surrounding the 2010 rollout of the Agisure Viptera corn seed developed by Syngenta AG.
Ken Walsh of Mount Kisco and John Jernigan of Brewton, Ala., are the other lawyers handling New York cases.
Litigation against Syngenta, which was acquired by China National Chemical Corp. in June for $43 billion, began in 2014 – four years after Syngenta began marketing the corn seed.
The problem, Barrett said, was that Syngenta failed to get Chinese approval of the seed, which contained the MIR 162 GMO seed trait.
“China ultimately detected MIR 162 in U.S. corn shipments in November 2013 and, as a result, China, then the third-largest U.S. corn export market, embargoed all U.S. corn -- thereby driving down corn prices and damaging American corn producers,” Barrett said.
“The U.S. corn market has yet to fully recover, nor is it likely to do so anytime soon because after the U.S. corn ban in 2013, China entered into long-term contracts with a number of South American producers.”
Syngenta’s inability to obtain approval by China and alleged misleading statements about when the seed would be approved prompted farmers to file a class action suit in Kansas City, Kan.
Since then, a federal judge dismissed the suit, leaving farmers in all but nine states -- Arkansas, Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, Ohio, and South Dakota – without a national class action protecting their legal rights. The nine states mentioned can proceed via state law class actions.
Cropsey said farmers in other states, such as New York, have the right to file individual cases.
“We are working principally in the GLOW region and have a couple of signed clients in Suffolk County and Niagara County,” Cropsey said. “Farmers only need to sign a contract. We will handle all the paperwork and file their cases in Williamson County, Illinois court.”
Cropsey said the opportunity to file individual cases is open to all New York corn producers who grew and sold corn for market at any time after 2012.
“It makes no difference whether they purchased Syngenta seed or a competing brand such as Pioneer or DeKalb,” he said. “All of them have been damaged no matter what brand(s) of seed they purchased. Nor does it matter whether the corn was sweet corn or field corn.”
Barrett recounted the litigation against Syngenta in three phases:
-- The one-count national class action, based on the federal statute known as the Lanham Act (which since has been denied);
-- A Minnesota state class action filed in state court in Minnesota;
-- Thousands of individual, non-class cases filed in both the Kansas and Minnesota courts as well as a state court in Williamson County.
“The three judges from Kansas, Minnesota, and Illinois have appointed a Special Master to work with the parties towards settlement on a parallel track with 48 test-case trials selected by the federal court in Kansas. This is being done to establish liability and damages parameters that will inform the settlement discussions,” Barrett said.
In an encouraging sign for farmers, the first Kansas test case trial last month ended with a jury verdict of $217 million in favor of the certified class of Kansas corn farmers.
“The Kansas class asked for $217 million in actual damages and that is exactly what they received -- no punitive damages were awarded,” said Barrett, adding that it took the jury less than a day to render its verdict.
A second test case trial, this one involving a single Nebraska plaintiff, was set to start on July 10 in Minneapolis, but a confidential settlement was reached four days earlier.
The third test case trial, this one involving the certified class of Minnesota corn farmers, is scheduled for mid-August in Minneapolis. The certified class of Minnesota corn farmers is seeking actual damages in the range of $600 million.
According to published reports, Syngenta lawyers are disputing the farmers’ claims of damages and are denying the company did anything wrong – noting that the seed wasn’t sold until U.S. approval was obtained and that it didn’t need China’s approval.
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For more information about the litigation, contact Cropsey (photo above) at 585-589-9400.
