Syngenta class action
Here’s our gathering of ag law news you may want to know:
We have a Farm Bill. After months of waiting, the United States Congress has passed the Agriculture Improvement Act of 2018, known as the Farm Bill. Members of Congress have been working for months trying to reconcile a House version and a Senate version in what is known as a Conference Committee. On Monday, December 10th, the Conference Committee submitted a report to members of Congress. Both the House of Representatives and the Senate approved the report by bipartisan majorities within a matter of days. The bill will become law once signed by President Trump, which analysts expect him to do by the end of this week.
The Ohio Ag Law Blog will explore some of the major provisions that will affect Ohio from a legal perspective, rather than restate what other news outlets and other sources have already said about the Farm Bill. First up will be a blog post about what the Farm Bill means for hemp in Ohio, so stay tuned for an in-depth analysis.
Syngenta settlement approved by federal judge. As previously reported in the Ohio Ag Law Blog here and here, the major multi-year class action lawsuit against Syngenta for failing to receive import approval from China before selling its Viptera and Duracade seeds in the United States has been settled for $1.51 billion. On December 7th, Judge John Lungstrum of the U.S. District Court for the District Kansas issued a final order granting the settlement. In the order, the court overruled a number of objections from class members who opposed the settlement. It also awarded one third of the settlement amount to the plaintiffs’ attorneys as attorney fees, valued at $503,333,333.33. The next step could involve appeals by those opposed to the settlement. According to a statement posted by one of the co-lead counsels for the plaintiffs, payments to eligible parties could begin as early as the second quarter of 2019, depending upon whether any appeals are filed.
Lawsuit centered on definition of “natural” allowed to proceed in California. Sanderson Farms labels its chicken products as “100% Natural.” However, the environmental groups Friends of the Earth and the Center for Food Safety have alleged that Sanderson Farms’ labeling is misleading, false, and unfair to competition. The lawsuit hinges around Sanderson Farms’ use of antibiotics in light of its “100% natural claims,” as the plaintiffs have argued that the reasonable consumer would believe “100% natural” to mean that the chickens were antibiotic free. Sanderson Farms has repeatedly countered that its chickens were cleared of any antibiotics before processing.
Sanderson Farms has asked Judge Richard Seeborg of the U.S. District Court for the Northern District of California to dismiss the case multiple times. Each time the court has either allowed the plaintiffs to amend their complaint or rejected Sanderson Farms’ motions. The most recent denial came days after Sanderson Farms issued a press release announcing that it would no longer routinely use antibiotics considered medically important for humans by March 1, 2019. The judge’s denial of the motion to dismiss does not mean that the plaintiffs are correct, it only means that the plaintiffs have presented enough facts for the case to continue.
The controversy stems from labeling and consumer expectations. We previously talked about the “what is meat” and “what is milk” debates in a previous blog post, and this issue is not much different. Again there is a word that has not been thoroughly regulated by a governing entity such that companies have used it to mean different things. As more labeling questions arise, the Ohio Ag Law Blog will keep you posted on trends and updates.
Ohio legislation on the move:
Lake Erie shoreline improvement bill passes. Last Thursday, the Ohio Senate and House of Representatives agreed to modifications to Senate Bill 51, which addresses Lake Erie shoreline improvements, along with multiple amendments. The primary purpose of the bill is to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district (SID). According to the Legislative Service Commission’s analysis when the bill was introduced, a SID is “an economic development tool” that facilitates improvements and services in the district “through a special assessment levied against property in the district.”
The bill as passed also would remove a requirement, previously included in Senate Bill 299, for the Ohio Department of Agriculture to establish rules regarding the Soil and Water Phosphorous Program. Instead, the department would now be instructed to “establish programs to assist in reducing” phosphorous in the Western Lake Erie Basin.
Further, the House added amendments that change a previously passed spending bill, House Bill 529. The bill would authorize $15 million for a flood mitigation project in the Eagle Creek Watershed. The Columbus Crew would also receive $15 million for construction of a new stadium in Columbus. The Armstrong Air & Space Museum in Wapakoneta would receive $250,000 for improvements. A few other tax items were addressed.
The bill as passed is available for download from the Ohio General Assembly’s website here. An analysis of the bill as most recently referred from the House Finance Committee is available here. As of the time of posting, the Governor still has to sign Senate Bill 51 for it to take effect.
Ohio township bill passes. Last Thursday, the Ohio House of Representatives and Senate agreed to modifications to House Bill 500, which would make a number of changes to Ohio’s township laws. Some of the highlights of the most recent version include:
- A boards of township trustees must select a chairperson annually.
- Petitions to change the name of township roads will result in an automatic name change if the county commissioners do not adopt a resolution regarding the petition within 60 days.
- County commissioners will not be able to vacate township roads unless the applicable board of township trustees have adopted a resolution approving the vacation.
- A board of township trustees will have the authority to charge a fee against a person who appeals a zoning decision to the board of zoning appeals in order to defray costs associated with advertising, mailing, and the like.
- A board of township trustees may suspend a member of a township zoning commission or township board of zoning appeals after charges are filed against a member, but must provide a hearing for removal no later than 60 days after the charges are filed.
- In limited home rule townships, the current requirement that a township must submit a proposed zoning amendment or resolution to a planning commission will be optional.
This list comes from the Ohio Legislative Service Commission’s bill analysis as of the bill’s re-reporting by the Senate Finance Committee. The bill analysis has a full list of the changes that House Bill 500 would make. For more information on the bill, visit the bill’s webpage on the Ohio General Assembly website.
Importantly for agriculture, the Ohio Senate removed language from the bill that would have changed Ohio Revised Code § 519.21(B), which limits the authority of townships to restrict agricultural uses via zoning. Currently, townships may only regulate agricultural uses in platted subdivisions created under certain statutory procedures, and only if certain conditions are met. The House had passed a version that would have allowed townships to regulate agricultural uses in any platted subdivision, but the language would not have changed the certain conditions that would have to be met.
Those post cards advising producers of a $1.51 billion settlement in the Syngenta corn seed lawsuits are legitimate, and corn producers seeking compensation from thesettlement must file claims by 11:59 p.m. on October 12, 2018. The settlement is the result of class action and individual lawsuits alleging that Syngenta failed to receive import approval from China before selling its genetically modified Viptera and Duracade seeds in the United States, which led to the rejection of U.S. corn shipments and a lowering of corn prices from 2013 to 2018.
Who can file a claim?
Three types of claimants that were involved in the U.S. corn market between September 15, 2013 and April 10, 2018 may file claims:
- Corn producers, which includes any owner, operator, landlord or tenant who shared in the risk of producing any variety of corn, not just Syngenta varieties. Landlords who operated under fixed cash leases are not eligible.
- Grain handling facilities that purchased, transported, stored, handled and sold any variety of corn.
- Ethanol production facilities that produced, purchased and sold dried distillers' grains from any variety of corn.
How to file a claim?
File electronically through a secure, encrypted portal at www.CornSeedSettlement.com or download a printed form on the same website to file via U.S. mail. Claimants must file using either a federal tax ID number or social security number and must file a separate claim for each Form 578 filed with FSA. Note that the settlement claims administrator states that all claims information is confidential and will be destroyed after the payment of claims.
How much will a claimant receive?
Payments will vary and will depend upon the total number of filed claims. For corn producers, the claims administrator will determine payments based on the following factors: (1) compensable recovery quantity as calculated by number of acres, ownership interest, NASS county yields and predetermined marketing year averages, (2) the year of planting, (3) the producer’s ownership interest, and (4) whether the producer purchased and planted Agrisure Viptera or Duracade seed or a different variety.
When will claimants receive payments?
A claimant might not receive a payment for about a year. A court hearing to approve the settlement will take place in the U.S District Court in Kansas on November 15, 2018. If the court approves the settlement, those who object to the approval can file appeals. Final payments won't occur until the court resolves all appeals, which could take about a year or more.
Must claimants report payments as income?
Class action settlement payments that compensate for the loss of business income should be reported for tax purposes. Claimants should consult with tax advisors to determine IRS reporting requirements.
For more information, an extensive list of frequently asked questions about the Syngenta corn seed settlement is available here.
Farmers are receiving a lot of attention from law firms these days, from video mailers to offers of free consultations, dinners, hats and more. The purpose of these marketing efforts is to entice farmers away from participating in the current class action lawsuit against Syngenta. Law firms want farmers to exclude themselves from the class action litigation and participate in individual lawsuits their firms would bring against Syngenta. With a deadline of April 1 looming, farmers must decide whether to remain in or step away from the class action lawsuit.
The class action lawsuit, known as “In re Syngenta AG MIR162 Corn Litigation,” is pending before the U.S. District Court in Kansas. It is one of two major lawsuits regarding corn rejected by China in 2013 because China had not yet approved Syngenta’s Duracade and Viptera brands of genetically-modified corn. The lawsuit consolidated hundreds of similar federal court cases that all claimed that Syngenta should be liable for the drop in corn prices that followed China’s rejections because Syngenta stated that it had obtained all necessary regulatory approvals for Duracade and Viptera, but instead released the seed before receiving China’s approval.
Last September, the court certified the litigation as a class action lawsuit, which allows the case to commence on behalf of all class members. Any farmer that fits within the class definitions is automatically included in the lawsuit and does not have to pursue individual litigation against Syngenta. The court established a nationwide class of “producers,” defined as any person or entity listed as a producer on an FSA-578 form filed with the USDA who priced corn for sale after November 18, 2013 and who did not purchase Viptera or Duracade corn seed (farmers who used Syngenta’s seed have different legal claims). The nationwide class is for producers bringing claims under federal law. The court also certified eight state classes for producers bringing claims under state laws, including Ohio. Syngenta appealed the class certification, but the Tenth District Court of Appeals denied the appeal.
Ohio farmers who fit the definition of “producers” are now automatically members of both the nationwide and Ohio classes. This means that every Ohio producer can receive a share of any award or settlement that results from the litigation, with required documentation. However, Ohio producers may choose to exclude themselves from or “opt out” of their classes and bring their own individual actions against Syngenta. The district court required attorneys for the class action suit to notify all potential producers of the lawsuit and of a producer’s right to be excluded from the litigation. A producer must send an exclusion request by April 1, 2017, following the process for exclusion stated in the court’s order, available here.
Pros and Cons of Staying in the Class
A major benefit of remaining in the class action lawsuit is convenience. Class members in the lawsuit have no responsibility for the proceedings, which falls upon the attorneys who represent the entire class. However, convenience comes at the cost of deferring decision making authority and losing a share of the award or settlement to court-ordered attorney fees, although class members may file objections to such decisions. Exclusion from the class gives producers freedom to pursue their own actions, which will likely lead to a stronger role in decision making and the ability to negotiate attorney fees. Exclusion also allows a farmer who may not agree with the litigation on principal to dissociate from the lawsuit.
The court has scheduled “bellwether” cases in the lawsuit, which will go to trial in June. Bellwether cases are chosen to be representative of the class. Allowing these cases to go to trial gives an indication of how the litigation will play out—the strength of each side, how juries react and how the law applies to the situation. Upon completion of the bellwether cases, both sides should be better able to decide whether to settle the lawsuit or continue with litigation.
The U.S. District Court’s website for the Syngenta class action lawsuit is http://www.ksd.uscourts.gov/syngenta-ag-mir162-corn-litigation/