December 7, 2018: In November, the Court held a hearing and indicated orally that it would grant final approval to the settlement. The settlement administrator is now in the process of finalizing individual damage awards for each farmer that submitted a claim. The award will be based primarily on the number of acres of corn grown during the relevant time period.
March 21, 2018: The settlement terms have now been finalized and presented to the Judge for approval. If approved, the $1.51 Billion settlement will be disbursed amongst corn farmers through a claims process open to farmers who sold corn during the 2013-14 through 2017-18 marketing years. On April 5, 2018, the Court will hold a hearing to determine whether the settlement should be preliminarily approved and notice should be sent to all corn farmers telling them how to submit claims. If the Court preliminarily approves the settlement, there will then be a 5-month period for corn farmers to submit claims. We will be reaching out to all of our clients soon to begin the process of collecting the information needed to submit claims. Because the per-bushel recovery is dependent upon how many corn farmers file claims (among other factors), we will not know what the final per-bushel number will be until the claims period has ended.
September 27, 2017: The second class trial began on September 11, 2017 in Minneapolis, Minnesota on behalf of 22,330 Minnesota corn farmers. In the first week, Rick Paul, one of the lead attorneys on the trial team, gave opening statements and also presented the first expert in the case. As we entered the third week of trial, we reached a global settlement with Syngenta that will create a claims process for all American corn farmers to recover money they lost due to the trade disruption caused by Syngenta’s premature release of Viptera in 2011.
The terms of the settlement are currently confidential. We anticipate submitting papers to the Court in the next 60 days for approval of the settlement.
July 5, 2017: The first trial on behalf of an individual farmer was set to begin on July 10, 2017. Just before the Final Pretrial Conference, the parties agreed to a confidential settlement in this individual farmer’s case. The next trial will begin on September 11, 2017 and is on behalf of a class of Minnesota corn farmers.
June 23, 2017: The first class trial occurred in June 2017. On June 23, 2017, the jury returned a unanimous verdict for Plaintiffs, which were a group of 7,343 Kansas farmers. The jury awarded full damages in the amount of $217,700,000 ($217.7 Million). You can read more about the win here:
Paul LLP’s Leadership Roles in the Litigation
We represent corn farmers and grain elevators for the losses they sustained as a result of Syngenta’s decision to prematurely commercialize a genetically modified corn seed sold under the trade name Agrisure Viptera. Despite warnings not to break from industry standard, Syngenta launched its new Viptera seed varieties without first obtaining major export market approval. After Viptera contaminated the U.S. corn supply, China, which had not approved Viptera for human or animal consumption, discovered the contamination in October-November 2013 and began rejecting shipments of U.S. corn. After rejecting several shipments through the winter of 2013-2014, China finally imposed a complete ban on all U.S. corn, and later U.S. DDGs. Despite the falling corn prices that resulted, Syngenta has refused to provide any compensation for the harm it caused. We represent farmers, elevators, and exporters seeking to recoup the losses they suffered as a result of this event.
The cases against Syngenta for the premature release of Viptera and Duracade, both of which contain the genetically-modified trait MIR162 which was not approved for import into China by the time it contaminated the entire US corn supply, is being litigated in two different jurisdictions. Paul LLP is one of only 2 law firms in the country that has been appointed to the leadership of both cases.
It is not too late to be a part of this case. If you are a farmer, elevator, or exporter who sold corn after November 2013, you were affected by the price drop on the CBOT because of the Chinese ban on U.S. corn—precipitated by Syngenta’s conduct. You can contact Ashlea Schwarz for more information, Ashlea@PaulLLP.com or 816-984-8105.
District of Kansas Litigation
In the United States District Court for the District of Kansas, Paul LLP was appointed to the Plaintiffs’ Executive Committee with 13 other law firms. These firms jointly oversee the entire litigation—meaning we are responsible for all aspects of the case including conducting discovery, deposing witnesses, collecting and reviewing documents, writing and arguing motions, attending hearings, and conducting the trials. We are also responsible for communicating with opposing counsel, other plaintiffs’ counsel whose cases are now part of the MDL, and communicating directly with the court. Currently there are over 2,700 cases filed in this multi-district litigation. These cases were originally filed in federal courts across the country, and were consolidated in the District of Kansas.
Paul LLP represents over one thousand individual farmers. We have spent hundreds of hours in the fields talking to farmers, elevators, and exporters; learning, intimately, the dramatic effect the Chinese ban has had on the farm community.
Our purpose in this litigation is two-fold: first, to compensate the farmers, elevators, and exporters for the losses they sustained when the price of corn dropped on the CBOT, and second, to create a legal standard for when a seed manufacturer can reasonably commercialize a new genetically modified seed. Part of acting responsibly requires that biotechnology companies avoid introducing a new genetic trait into the market prematurely before it has been approved in all significant export markets. All industry leaders, including Syngenta, recognize that premature commercialization can cause significant trade disruptions and enormous harm to industry participants. This rush-to-market approach must be stopped. Farmers, already dealing with significant variables in successfully planting and harvesting (like the weather), should not have to be bludgeoned with the unforeseen consequences of a corporate giant killing a key export market in order to maximize its own profits.
The District of Kansas Court selected approximately 48 cases to be “bellwethers,” which will give the plaintiffs and Syngenta insight into the strength of the case and also how the larger group of cases may be resolved in the future.
Importantly, the Court has required all farmers, elevators, and exporters who have filed a case to preserve certain documents relating to their farming operations. The Court’s Preservation Order can be reviewed HERE. If you are already one of our clients or if you have any interest in joining this litigation, we urge you to review the Court’s order and make sure you are saving all of the documents and information mentioned. This is important to the integrity of the process and also ensures that the records needed to determine your damages are kept.
The law has special rules for when you can file a case in state court or federal court. One of those laws says that you can sue a defendant in the defendant’s “home state”—which, most often, is where the corporation has its headquarters—and be in state court (instead of federal court). Here, Syngenta Seeds, Inc. is headquartered in Minnetonka, Minnesota. Thousands of farmers chose to file their cases in Minnesota state court. Currently, there are over 60,000 individual farmers and elevators who have sued Syngenta in Minnesota. Like the federal courts, the Minnesota state courts sent all of these cases to one judge in Hennepin County who is overseeing the entire litigation. Also like the federal case, the Court appointed a leadership team, called the Plaintiffs’ Steering Committee (“PSC”) that is charged with litigating all of the cases. The Court appointed 10 firms, including Paul LLP. Thus, like in Kansas, we are responsible for all aspects of the 60,000 cases as they proceed through trials. The Minnesota court has also selected 40 plaintiffs to go first through the discovery process and trial.
Rick Paul is one of the lead trial attorneys who will be prosecuting both the individual and class cases that are going to be tried in Minnesota.
Although cases are filed in different jurisdictions, the two leadership teams are working in coordination. This creates efficiency and lessens the cost associated with each case because the plaintiffs in Kansas and Minnesota can share the discovery taken in each case (such as documents produced by Syngenta and depositions of Syngenta’s key witnesses).
The Facts Underlying the Case
In 2010, Syngenta announced that it planned to commercialize a new hybrid corn seed under the trade name Agrisure® Viptera™. Although Viptera had been approved by the USDA, it was not approved by our major export markets, most notably China. At the time, it was clear that China was a large and rapidly growing market for U.S. corn. As a result, several national trade organizations, including the NGFA and NAEGA, sent a very public letter to Syngenta asking it not to commercialize Viptera until it was approved for import into China. Syngenta was told in no uncertain terms that it was risking the U.S. corn trade market—and thus U.S. corn prices.
“Putting the Chinese and other markets at risk with such aggressive commercialization of biotech-enhanced events is not in the best interest of U.S. agriculture or the U.S. economy.” Joint Statement by National Grain and Feed Association and North American Export Grain Association CLICK HERE to read the full statement.
Despite the warnings, Syngenta nevertheless proceeded to broadly commercialize Viptera.
Understanding the potential harm to corn prices, one of the top 3 grain elevators, Bunge, put up signs saying it was not going to purchase Viptera corn. In response, Syngenta sued Bunge in federal court, asking the court to order Bunge to purchase Viptera corn. Syngenta argued that Bunge could simply segregate Viptera corn to prevent it from contaminating corn that would be shipped overseas. The court denied Syngenta’s request and found that it was unreasonable to ask grain elevators to segregate Syngenta’s corn—and the cost would be astronomical.
As predicted, Viptera contaminated the U.S. corn supply. In November 2013, China, then the second largest importer of U.S. corn, found Viptera in a shipment of corn during inspection. At the time, China had not approved Viptera and turned the ship around at the dock. During inspections in late 2013 and early 2014, China discovered that many shipments of U.S. corn were contaminated with the Viptera GMO trait. In response, China banned the import of all U.S. corn. Not surprisingly, corn prices have fallen and studies conducted by the NGFA and the NAEGA have found that Syngenta’s conduct has caused billions of dollars of harm to corn farmers and the entire U.S. corn supply channel.
The trade organizations again sent letters to Syngenta asking it to pull Viptera from the market until it obtained China’s approval.
“NAEGA and NGFA are gravely concerned about the serious economic harm to exporters, grain handlers and, ultimately, agricultural producers – as well as the United States’ reputation to meet its customers’ needs – that has resulted from Syngenta’s current approach to stewardship of Viptera. Further, the same concerns now transcend to Syngenta’s intended product launch plans for Duracade, which risk repeating and extending the damage. Immediate action is required by Syngenta to halt such damage.” NGFA and NAEGA Joint Statement, http://www.ngfa.org/2014/01/24/ngfa-naega-issue-joint-statement-urging-syngenta-to-suspend-commercialization-of-agrisure-viptera-and-duracade-biotech-corn/
Some of the big exporters, including Cargill, ADM, and Trans Coastal, have filed lawsuits against Syngenta. Shortly after China imposed its ban on U.S. corn, trade groups estimated the total losses at around $3 billion and predicted (accurately) that the decline in corn prices would continue.
For more information or to speak with an attorney, please call our office at 816-984-8100 or email Ashlea Schwarz at Ashlea@PaulLLP.com.