Litigation over Syngenta's corn seed grows as farmers file class actions

A seed developer is facing another wave of litigation over a genetically-engineered corn seed that a group of farmers contend crippled the U.S. export market in China and caused a decline in corn prices, a combination they assert will lead to a projected $1.14 billion loss this year.

Corn farmers in several states, including Illinois, filed class action lawsuits this month against Syngenta Corp., Syngenta Crop Protection LLC and Syngenta Seeds Inc. over their four-year-old corn trait, MIR162, which includes first generation “Agrisure Viptera” and second generation, “Agrisure Duracade.”

Mendota, Ill. farmers Daryl and Matthew Sondgeroth-- as well as Munson Brothers Farm and Union Line Farms, corporations headquartered in Mendota, Ill. and Hopkinton, Iowa, respectively--filed their seven-count complaint Monday in Chicago’s federal court.

Court records show similar suits over the seed, which was developed to make corn resistant to damage caused by certain worms feeding on the crop, were filed this week in Iowa, Kansas, Missouri and Nebraska.

These suits come on the heels of two separate suits Trans Coastal Supply Co. and Cargill Inc. brought last month over claims they were expecting to lose millions as a result of the sale of the Syngenta defendants’ corn seed and its alleged devastation on the U.S. corn export to China, not to mention global corn market.

Responding to Cargill's lawsuit, Syngenta in a Sept. 12 statement said it "believes that the lawsuit is without merit and strongly upholds the right of growers to have access to approved new technologies that can increase both their productivity and their profitability."

In the Illinois suit brought this week, the plaintiffs claim the Syngenta defendants’ release of the MIR162 seed destroyed the export of corn to China, where the trait has not yet garnered the governmental approval. It was approved in the U.S. in 2010, and has since been approved in Brazil, Argentina and other countries.

Although the plaintiffs don’t buy the corn seed at the crux of their lawsuit, they claim it has affected their business based on China's zero-tolerance policy for the MIR162 trait.

“Given that MIR162 corn has not been approved in China, however, as of November 2013, China has stopped importing U.S. corn when it detects traces of MIR162 in U.S. corn shipments,” the suit states, later noting that since then, “Chinese imports for U.S. corn have decreased by an estimated 85 percent.”

Even though “MIR162 corn was only planted on about [three-percent] of U.S. acres for the last two seasons,” the plaintiffs assert their non-genetically engineered corn can be contaminated with MIR162 corn through comingling during export and harvesting, as well as “accidental mixing and cross-pollination by bees or wind.”

The Chinese government’s lack of approval of the seed apparently led Bungee North America Inc., a St. Louis-based grain elevator and handler, to post notices about its refusal to accept Viptera corn during the 2011 harvest season, according to the plaintiffs’ suit.

Syngenta, in response, sued Bunge in federal court in Iowa, seeking an injunction to require Bunge to accept Viptera corn. That request, the complaint states, was denied and several of the claims were dismissed, but the suit against Bungee remains pending.

“Major grain handlers, such as Bunge, Archer Daniels Midland, Cargill and others still refuse to accept Viptera corn, because preventing commingling is essentially impossible,” the plaintiffs assert.

In their suit, the plaintiffs claim the Syngenta defendants knew or should have known its MIR162 trait, both first and second generation, would contaminate U.S. corn shipments and that the Chinese government’s lack of approval would affect the export market and lead to lower prices.

The plaintiffs further accuse the defendants of making false and misleading statements about the approval status of the seed in China and contend they acted in reckless disregard when they decided to release  and market its second generation MIR162 seed, given the first still hadn’t received Chinese approval.

Their suit alleges Lanham Act violations, public nuisance, trespass to chattels, common law negligence, strict liability-products liability, strict liability-failure to warn, and tortious interference with prospective business relationships.

It seeks the creation of a nationwide class that would include “[a]ll persons and entities that grew, harvested, and sold non-MIR162 corn on a commercial basis (or who received revenue from or such corn under a crop-share agreement) from November 2013 to the present,” and Illinois and Iowa subclasses.

The plaintiffs want Chicago’s federal court to order the Syngenta defendants to stop selling the MIR162 seed until it is approved for import to China and to take steps to remediate the alleged contamination that has already occurred, as well as award them damages in an amount to be determined at trial, interest, costs and any other relief it finds proper.

The suits filed against the Syngenta defendants this month appear to have been coordinated by the Washington D.C. firm of Hausfeld LLP.

The Illinois complaint was submitted by the following attorneys: Adam J. Levitt and Edmund S. Aronowitz of Grant & Eisenhofer P.A. in Chicago; Richard S. Lewis, James J. Pizzirusso and Mindy B. Pava of Hausfeld LLP; Thomas V. Bender of Walters Bender Strogbehn & Vaughan P.C. in Kansas City, Mo.; Klint Bruno of The Bruno Firm in Chicago; Kim Stephens and Jason T. Dennett of Tousley Brain Stephens PLLC in Seattle, Wash.

Litigation over the MIR162 trait comes about two years after southern Illinois’ federal court approved a $105 million settlement in a class action lawsuit against Syngenta Crop Protection and Syngenta AG over its agricultural herbicide atrazine.

The plaintiffs in that class action suit included water providers in six states and several municipalities, who claimed atrazine entered their water supplies and forced them to pay for the testing, monitoring and filtering of their water.