Syngenta

When asked if it this is what he has been hoping for, attorney M. Scott Barrett didn’t hesitate.

“It sure as heck is,” said the Indiana lawyer regarding the news that Syngenta AG has agreed to pay more than $1.4 billion to U.S. farmers who filed suit against the Swiss agrochemical company for misleading marketing tactics in connection with its rollout of the Agisure Viptera corn seed in 2010.

The settlement was announced late Tuesday night, said Barrett, who has been working with Albion lawyer Conrad Cropsey and others in an effort to reach corn growers in the GLOW region.

Barrett, in an email sent to local media Thursday, reported that this agreement involves more than 100,000 farmers in the United States, but other growers who have yet to opt in still have an opportunity to do so.

“First, this is no longer a matter of telling your corn producer readers that they may get money if they hire a lawyer to represent them. This is now a done deal,” he wrote. “If your corn producer readers hire a lawyer to represent them in this matter, they will get money.”

Barrett said a deadline to join the suit is uncertain, but believes that it could be based on the date that a farmer signs a contract to hire a lawyer to represent him or her in the settlement.

“There will also be a deadline later on to file a claim,” he said. “The later deadline to file a claim is not time sensitive as of today- - it can be dealt with later on. The corn producers’ critical task now to participate in the settlement is to hire a lawyer to represent him or her in the settlement.”

Litigants contended that Syngenta did not get approval from China to distribute the seed, which was found to have contained a seed trait (MIR 162 GMO) that the Chinese deemed unacceptable.

In 2013, China embargoed all U.S. corn and, as a result, corn prices declined sharply and American corn producers suffered extensive monetary losses.

Attorneys for Syngenta said that the company was not at fault because the seed wasn’t sold until U.S. approval was obtained and that it didn’t need China’s approval.

Syngenta was acquired by China National Chemical Corp. in June for $43 billion.

According to a Bloomberg article, the settlement nearly equals the $1.5 billion that Syngenta generated in net income last year, on total revenue of $12.8 billion. It also was reported that Syngenta was expecting to pay between $1 billion and $2 billion to resolve the corn litigation.

Barrett expects USDA Farm Service Agency offices to be “overwhelmed” with Form 578 requests since that is the form required to submit claims. He advises corn growers to contact their FSA office as soon as possible and request the Form 578 for 2011-2016.

For further information, contact Barrett at 317-431-1249 or 812-334-2600 or go to the Syngenta NY website at www.syngentanycornlitigation.com.

Last week’s order by a U.S. District Judge in Kansas City, Kan., to appoint a plaintiffs’ settlement negotiating committee is an encouraging sign for New York State corn farmers who are suing Syngenta AG, a Swiss agrochemical company accused of misleading marketing tactics.

Justice John W. Lungstrum, in an Aug. 8 ruling, appointed a team of attorneys to work with Special Master of Settlement for Ellen K. Reisman “toward a fair and expeditious resolution” of several lawsuits filed against Syngenta in connection with its rollout of the Agisure Viptera corn seed in 2010.

Reisman is a partner in Reisman Karron Green LLP based in Washington, D.C.

Litigants contend that Syngenta failed to get approval from China to distribute the seed, which was found to have contained a seed trait (MIR 162 GMO) that the Chinese deemed unacceptable.

In 2013, China embargoed all U.S. corn and, as a result, corn prices declined sharply and American corn producers suffered extensive monetary losses.

Attorney M. Scott Barrett of Bloomington, Ind., who is representing farmers in the Genesee, Livingston, Orleans and Wyoming region, said the judge’s order to form a settlement negotiating committee could mean that good news is forthcoming for his clients.

“We’re hoping that this would be settled by Sept. 11 (the date that a Minnesota class trial is scheduled to begin),” said Barrett, an Albion native. “With that being said, it’s still not too late for (New York) farmers to get in. If they wait to the last minute, they possibly will be unable to participate.”

Barrett said the lawsuit is open to all corn producers who grew and sold corn for market at any time after 2012, and not just those who purchased and/or used the Syngenta seed.

He and attorneys Conrad Cropsey, of Albion, Ken Walsh, of Mount Kisco, and John Jernigan, of Brewton, Ala., are representing New York farmers. Jernigan and Barrett were in the area last week, meeting with some of their clients.

One of those is Joe Tuchrello, of Tuchrello Farms in Livingston County, a longtime farmer of various crops, including potatoes, soybeans and corn.

“I’m not crazy about losing $100,000 a year,” said Tuchrello, who at 83 years of age continues to work every day. “Whatever we can get will be a godsend.”

“I have never seen the likes of what we have gone through,” he said, noting that the price of corn dropped from around $8 per bushel to $3.50.

Syngenta was acquired by China National Chemical Corp. in June for $43 billion.

Lawyers for Syngenta contend that the company did not do anything wrong because the seed wasn’t sold until U.S. approval was obtained, and that it didn’t need China’s approval. However, a test-case trial in Kansas ended with a jury verdict of $217 million in favor of the certified class of Kansas corn farmers and a test case trial in Minneapolis was settled out of court before it began.

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In photo at top, attorneys M. Scott Barrett, left, and John Jernigan, in front of cornfield in Caledonia. For more information about the litigation, contact Conrad Cropsey at 585-589-9400.

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.