Corn producers with exported crops from 2011 through 2014 may have a claim against Syngenta due to the MIR162 corn trait, according to Dave Domina of Domina Law Group in Omaha.
Domina updated area farmers about lawsuits regarding MIR162 during an informational meeting in Weeping Water March 7.
“We are investigating claims against Syngenta and providing services to all producers/sellers who need our help,” Domina said. “Every corn producer/seller is a potential claimant, and these cases will either be resolved as ‘mass actions’ or in a ‘class action’ on behalf of U.S. corn producers and sellers.”
MIR162 has been sold under the names Agrisure Viptera in 2009 and recently as Agrisure Duracade.
“Syngenta’s corn trait MIR162 makes plants resistant to certain pests. While developing traits resistant to pests is not a bad thing, if certain countries or world markets reject this type of corn because of specific issues with this trait, the entire corn market may be injured by limiting the number of markets and potential buyers. Less markets equal lower prices,” Domina said.
The USDA approved MIR162 in 2008. The Environmental Protection Agency and Brazil approved it in 2009 with Canada accepting it in 2010. China did not accept it until Dec. 17, 2014.
The corn market plummeted after China rejected all U.S. corn exports in 2012 and 2013. “The National Grain and Feed Association estimates that U.S. growers, grain handlers and exporters suffered losses up to $2.9 billion. Any dollars that can be recovered belong in the pockets of U.S. corn sellers,” Domina said.
The pending lawsuits claim Syngenta’s marketing failed to warn them about China’s rejection. They have nothing to do with the quality of the corn product with MIR162 trait, he said.
“It is thought Syngenta misinformed farmers, elevators and exporters that MIR162 approval by China was imminent and posed no problem for the corn market. However, even after Syngenta’s upper management knew better, Syngenta continued to offer more MIR162 lines without disclosures. Even if the grain is good for some uses, it was not exportable on satisfactory terms,” Domina said.
Syngenta claims no market harm to U.S. farmers occurred. “The financial problem came about because Syngenta decided to market its MIR162 corn to American corn farmers without disclosing the risk of losing the Chinese export market even though it knew China had not approved the trait. The theory of the case is that all U.S. corn producers suffer a loss if the nationwide price of corn fell due to the loss of the Chinese market,” Domina said.
China had a “no-MIR162 policy” when it rejected the shipments. China gave no reason for the MIR162 ban. “When the first shipment got there, they tested and rejected the loads,” Domina explained.
Domina said China possibly rejected the corn for health concerns or in order to protect its own export market. “We produce 32 percent of the corn in the world. China produces 24.5 percent,” Domina said.
Because it has its own corn crops, China does not import the lion’s share of corn in the world. “At the 2012 year end, China had imported five million metric tons from the world,” he said. “Since then they have imported half or less.”
Domina stresses the rejection affected all corn producers.
“Chinese rejection of all U.S. corn caused an injury to the market, which means even if you have never planted Syngenta corn with the MIR162 trait, you may have suffered a financial loss. Because MIR162 was mixed and combined with all other U.S. corn, all non-MIR162 corn was contaminated and all U.S. corn shipments were denied by China.”
So far more than 760 separate lawsuits have been filed and more are being filed.
“The claim in the suit is the market never recovered, not because of the news but because of the reduced demand,” he said.
Cases around the country have all been swept together and moved to the Federal District Court in Kansas. “A single judge is to be the shepherd over those cases,” Domina said.
A hearing is scheduled for April 27. The judge will decide whether the lawsuits will be dealt with as “mass action” or “class actions.”
Mass actions involve injuries to a distinct group of individuals who may reside in the same geographical area. The number of people injured in a mass action is usually less than those in a larger class action.
In a class action the large group of plaintiffs is represented by a class representative, who stands in for the rest of the class. This means all members of the class are treated as one plaintiff, not separately.
Most lawyers believe the judge will decide to make it a mass action suit.
“A mass action is easier,” Domina said. “It can require one prototype case be filed. Syngenta would only have to answer to one, so the number of claimants shrink. When the judge figures out what issues are worth trying, he can chose a few to try. He might choose the best 10.”
Domina noted that Nebraska also has a four-year statute of limitations on lawsuits. “Sometime in 2015 around harvest time, 2011 will disappear,” he said.
Domina said he believes claims will receive a payout, but warned farmers not to spend the money before it is awarded.