This post is not legal advice. See the site’s reposting policy here. This post ran in the Delmarva Farmer the week of March 26.
Time is running out for Delaware and Maryland producers to decide whether or not to stay in the current Syngenta AG MIR162 Corn Litigation or opt out to pursue individual claims against Syngenta. Delaware and Maryland corn producers have until April 1, 2017, to make this decision.
Background
In 2010, Syngenta was approved to begin selling seeds containing the MIR162 genetic event. Genetic event is unique DNA recombination event that took place in one plant cell and is now used to create an entire plant variety. Syngenta began selling the MIR162 in 2011. In 2013, the genetic event appeared in shipments to China, and the Chinese had yet to approve it for. The Chinese began to reject shipments of U.S. corn, and the price of corn fell. Producers who did not grow the MIR162 genetic event began to file lawsuits against Syngenta. A judicial panel combined the lawsuits into one federal district court and in late 2016, the court granted class certification for nine classes of producers.
The one class important to Delaware and Maryland producers is the nationwide class. To be a member of this class, a producer must be listed on an FSA-578 Form, Report of Acreage Form, have not purchased Duracade or Viptera corn seed, and have priced corn after November 23, 2013. If you meet these requirements, you are automatically a member of the nationwide class and should have received a letter notifying you of the class certification.
Bellwether trials are scheduled to begin in June 2017. Bellwether trials are representative trials chosen to help determine the strengths and weaknesses of each side’s case, how juries will react, and applications of the law. After the bellwether trials, parties will either continue the lawsuits or seek a settlement.
Next Steps
Between now and April 1, 2017, producers must decide whether to remain in the class, which requires no action, or opt out of the class, which requires returning a form. Individual producers must make a decision that works for their particular situation.
Remaining in the lawsuit makes a class member essentially a plaintiff in the class action suit. Unlike a typical plaintiff, a class member will not have to do anything to move the lawsuit forward and be represented by the named plaintiffs and their counsel. The named plaintiffs and their counsel are the ones who will make strategic decisions in the litigation. If the named plaintiffs settle the class action lawsuit, then the court must approve that settlement and class members would be allowed to vote to approve or oppose the settlement. An approved settlement or a resolution by the court would potentially require class members to prove entitlement to a portion of the fund. For example, producers may have to show they marketed some bushels after November 18, 2013.
Class members can also opt out of the class-action lawsuit. By opting out, a producer would no longer be a part of that lawsuit and can bring separate claims against Syngenta. Bringing an individual lawsuit would allow the producer to select counsel and bring a suit based on individual circumstances, but would also mean additional costs for attorneys and experts and time.
What to Do
I make no opinion or give no advice; this decision is up to each producer. Producers will want to weigh the pros and cons of participating in the class action lawsuit vs. opting out. Producers may consider getting advice from an attorney licensed in your state. But this decision will have to be made before April 1, 2017.