Settlement Approved for Claims Involving Off-Target Soybean Damage for 2015 to 2020

Soybean harvest in Caroline County MD by Chesapeake Bay Program

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In late 2020, the federal district court approved the settlement involving off-target dicamba damage to soybeans. The settlement will compensate soybean growers for yield losses from 2015 to 2020. As we will discuss, if you qualify, you need to file your claim before May 28, 2021.

Dicamba Off-Target Damage Class Action

Producers experiencing dicamba off-target damage brought the current In re Dicamba Herbicides Litigation against the manufacturers of the dicamba-based herbicides XtendiMax and Engenia in 2017. With the federal claims, the plaintiffs argue that Bayer and BASF Corporation violated § 1125(a) of the Lanham Act in marketing both XtendiMax and Engenia dicamba-based herbicides. The plaintiffs also allege that state claims focused on negligence claims in product design, failure to warn of negligence in the design, failure to warn of the dangers, and insufficient training of sales of representatives for the two dicamba-based herbicides.

Bayer announced a $400 million settlement with the plaintiffs in June 2020. The federal district court recently approved this settlement, which is for claims involving yield losses due to dicamba damage from 2015 to 2020. About $300 million of the settlement will cover specific losses to soybean growers during that period. Another $100 million of the settlement will go towards non-soybean damage and include the plaintiffs' attorneys' fees.

Who Qualifies?

Soybean growers might be eligible for benefits under the settlement if they meet two requirements:

1. They grew soybeans during any of the crop years from 2015 to 2020 and

2. Their crop experienced damage related to off-target dicamba exposure in one or more of those years.

Planting soybeans by United Soybean Board

Claims Process

To file a claim, visit https://www.dicambasoybeansettlement.com/ to start the process. You will need to provide information related to damaged fields, including FSA Field number or GPS coordinates, total acres planted in soybeans, year(s) of injury, and if you already received money for the yield loss.

You will need to submit yield data for the affected fields and selected benchmark fields for damage years and for three non-damage years. To be a benchmark field for an affected field in a damage year, the field must :

1. Be a field you have an interest in;

2. Cannot be an affected field in the same year;

3. Is within the same farm number as the affected field or, if there are no fields otherwise meeting these benchmark field criteria within the same FSA farm number as the affected field, then is within the same township and range as the affected field;

4. Have not fewer than 25 planted acres; and

5. Was planted to soybeans in the damage year and in at least three non-damage years for the affected field to which it is being compared (the “Minimum Benchmark Criteria”).

By proposing a field as a benchmark field, you certify that it is an appropriate field to correspond to the affected field. You must provide a qualified reason for disregarding a benchmark field, which includes:

1. The affected field and field otherwise meeting the minimum benchmark criteria for such affected field does not have the same irrigation status (i.e., irrigated one and non-irrigated one) in the damage year or in any of the 3 most recent non-damage years in which both the affected field and the field at issue were planted to soybeans, as reflected in your Form FSA 578 (or similar form or certification, if applicable);

2. The affected field is five or fewer planted soybean acres as reflected in your Form FSA 578 (or similar form or certification, if applicable), and you explain why the size difference makes the field otherwise meeting the minimum benchmark criteria inappropriate for purposes of comparing yields;

3. The affected field and field otherwise meeting minimum benchmark criteria were planted 21 or more days apart in the damage year or in any of the 3 most recent non-damage years in which both the affected field and the field at issue were planted to soybeans, as reflected in your Form FSA 578 (or similar form or certification, if applicable); or

4. The affected field or field otherwise meeting the minimum benchmark criteria, but not both, suffered yield loss attributed to an Act of God in the damage year or any of the 3 most recent non-damage years in which both the affected field and the field at issue were planted to soybeans, and the yield in the year of loss was at least 25% less than the APH (Actual Production History) of such field, as reflected in records of your crop insurer.

If you disqualify a field for qualifying reasons, you must provide the appropriate Form FSA 578 or insurance documents to support the explanation. If you disregard a field for a non-qualifying reason, you will be subject to an enhanced review process.

The purpose of the enhanced review process is to determine, based on available records, the best estimate of the field yield loss for any eligible field subject to the Enhanced Review Process if such an estimate can be determined from a reasonably reliable methodology; or if there is no such methodology, to estimate any yield loss from dicamba off-target damage for an eligible field in a fair process.

With the settlement process, you must provide some documents: either one or more Category 1 documents, or two or more Category 2 documents -- more on those in a minute. You must also provide any administrative agency reports from complaints filed or investigated by a governmental agency regarding alleged off-target dicamba damage, along with any FSA-578 forms and Farm Service Agency and Risk Management Agency releases.

Sprayer in field by United Soybean Board

To demonstrate the off-target injury, you must present one or more Category 1 documents or two or more Category 2 documents. Category 1 documents include:

1. An Administrative Agency Report sufficient to support a finding of dicamba symptomology in the affected field in the damage year;

2. A report from an insurance adjuster or inspector sufficient to support a finding of dicamba symptomology in the affected field in the damage year;

3. A report or similar contemporaneous writing from a cooperative extension agent or other university representatives sufficient to support a finding of dicamba symptomology in the affected field in the damage year;

4. A report or similar contemporaneous writing from a private agronomist or weed scientist sufficient to support a finding of dicamba symptomology in the affected field in the damage year; or

5. A report, statement, or admission of a present or former Monsanto or Badische Anilin und Soda Fabrik (BASF) employee who inspected the affected field indicating dicamba symptomology in the affected field in the damage year.

Category 2 documents include:

1. Dated (where available) and authenticated photographs or videos sufficient to support a finding of dicamba symptomology in the affected field in the damage year;

2. A complaint filed with a Federal or State agency, including the USDA, sufficient to support a finding of dicamba symptomology in the affected field in the damage year;

3. A report or statement from a crop consultant or crop scout adequate to support a conclusion of dicamba off-target damage in the affected field in the damage year;

4. A declaration of an applicator who sprayed the dicamba over the top of dicamba-tolerant soybean or cotton plants that produced dicamba symptomology in the affected field in the damage year;

5. A retained expert’s report sufficient to support a finding of dicamba symptomology in the affected field in the damage year;

6. A declaration of the party describing dicamba symptomology in the affected field in the damage year with a corroborating declaration from a disinterested third party

7. Aerial or drone photography of sufficient quality to show dicamba symptomology in the affected field in the damage year;

8. A combination of any 1 Category 1 document and any 2 Category 2 documents; or

9. Any documents that the claims administrator deems to have a similar reliability level as Category 1 documents or Category 2 documents.

If you have more questions on the settlement process, see the FAQs associated with the process (https://www.dicambasoybeansettlement.com/Home/Faq).

Wrap Up

Those who experienced off-target dicamba damage on soybeans in the 2015 to 2020 crop years have until May 28, 2021, to submit a claim. This settlement is slightly more complicated than earlier settlements. Consider reviewing https://www.dicambasoybeansettlement.com/ to ensure you understand the records you need to pull together before submitting a claim.