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2016 and 2017 have seen large numbers of complaints filed because of drift damage in the Midwest and South due to dicamba application on new Monsanto varieties of cotton and soybeans that allow producers to apply the dicamba over-the-top. I’ve written earlier about a dicamba drift class action lawsuit filed in Missouri, but a recently class action in the Eastern Federal District of Missouri is being brought by a group of Arkansas farmers who planted older varieties of soybean and cotton that was not resistant to dicamba.
In 2015, Monsanto released a new variety of cotton, XtendFlex cotton, which allowed for over-the-top applications of dicamba. Then 2016 saw the release of XtendFlex soybeans that also allowed for this application. At the time of the releases, the dicamba to be used over-the-top had yet to be approved by EPA. Without an approved dicamba on the market, many producers turned to older dicambas to apply over-the-top that were not approved for this use.
The plaintiffs in this most recent class action lawsuit argue that although Monsanto’s website and other materials highlighted that over-the-top dicamba applications were illegal till the new dicamba was approved, Monsanto’s reps in the field promoted the use of dicambas on the market for over-the-top applications.
The plaintiffs also argue that Monsanto did not present complete information to the EPA on the risks associated with the new dicamba while EPA was considering the new dicamba approval. The plaintiffs highlight test results by universities which show that the new dicamba may also be as volatile as existing dicambas on the market and may still drift due to temperature inversion. Due to all this, the conditions for the application listed on the label might not be possible for an applicator to follow.
The plaintiffs are looking for class certification for both a class of Arkansas plaintiffs and a nationwide class of plaintiffs. With the nationwide class, the plaintiffs say Monsanto violated the Lanham Act and is in violation of the Sherman Act. The Lanham Act is the primary law used in the United States to protect trademarks. One part of the Lanham Act is § 1125(a)(1)(A) makes it illegal for companies to make false and misleading statements which could hurt consumers. Plaintiffs argue that Monsanto’s statements mislead producers into believing the approved dicamba was on the market and caused confusion among producers. Basically, making the new seed varieties available before the dicamba was approved confused and mislead producers into believing the new dicamba was approved.
The other four counts for the nationwide class say that Monsanto is in violation of the Sherman Act by creating an illegal soybean and cotton monopoly. The Sherman Act is a federal law designed to protect competition and prevent monopolies. The plaintiffs argue that Monsanto is maintaining a monopoly in the cotton and soybean markets. Currently, 90 percent of soybeans grown in the United States include Monsanto’s Roundup Ready technology, and 90 percent of U.S. cotton includes Monsanto’s Roundup Ready technology.
These five nationwide class claims may not survive and may be dismissed. We have seen similar claims in other class-action lawsuits involving new technologies. These claims often do not survive to trial and class members are left with only state law claims. This case is currently in the early stages, so we will need to see what claims survive for the nationwide class members.
The remaining claims are those for the Arkansas class members, which say Monsanto violated Arkansas law by negligently bringing the new varieties to market while knowing the dangers (over-the-top applications of current dicambas) of bringing these varieties to market before the new dicamba’s approval. These claims will be worth watching moving forward; Monsanto has denied the claims.
What is next? We currently have at least two class action lawsuits filed due to the dicamba drift damage in 2016 and 2017. The University of Missouri has released a map of drift damage claims by state. We have seen states restrict dicambas to limit potential damage. While we in Maryland have been lucky not to experience this drift damage, our neighboring states have not been so lucky. Maryland producers may not qualify for the nationwide class, but other states’ producers may qualify or may consider their own class-action lawsuits.
Complaint, Smokey Alley Farm P’ship v. Monsanto Co., No. 4:17-cv-2031 (E.D. Mo. July 19, 2017).