Farmers are receiving lots of free steak dinners, hats, shirts, jackets and office supplies from out-of-town attorneys these days.
The situation centers around a company called Syngenta and the status of genetically modified crops around the world.
The story starts with Gregor Mendel, a Catholic friar (like a monk) in the mid-1800s in current day Czech Republic. Mendel discovered the process of sexual reproduction of plants with various preferable characteristics to create what is now known as genetic hybrids.
Over the last few decades, scientists have desired to skip the lengthy process of improving plant characteristics through sexual reproduction and instead began to splice preferable genes directly into seeds. This is the essence of what is now known as “GMO,” or genetically modified organisms.
U.S. scientists generally consider GMO products as safe. However, the European Union has traditionally treated all GMO products as unsafe. Much of the rest of the world, including China, has determined GMO-product safety on a case-by-case basis. China remains one of the biggest buyers of American farm crops.
Notably, some farmers have attempted to segregate non-GMO products from GMO products, but the ability to preserve distinct identities of farm products in this context has become and remains more difficult each year as neighboring farmers’ fields cross-pollinate each other.
In 2010, Syngenta created two varieties of genetically modified seed corn. Before securing approval from the world’s biggest purchasers (such as China), Syngenta marketed and sold the corn seed in the United States.
In November 2013, China decided that Syngenta’s new corn varieties were unsafe and therefore stopped importing all corn from the United States, because Syngenta’s GMO corn had not been (and likely could not be) segregated from the rest of the U.S. corn crop. China’s decision was followed by an immediate, significant decrease in the price of corn in America’s corn markets.
Did China’s action, driven by Syngenta’s action, cause the price of corn to plummet and cost American farmers up to $7 billion? Many attorneys believe that that chain of causation is accurate and provable.
Late last year, a federal judge in Kansas determined that most U.S. corn farmers who were not Syngenta customers could be represented collectively in a class action. Importantly, that decision did not determine that Syngenta did anything wrong. The decision simply found that farmers who filed FSA form 578 and priced corn for sale after November 18, 2013, could be granted damages as a group, if Syngenta’s actions were illegal and financially damaged farmers.
The class action process will include most American corn farmers unless those farmers “opt-out” before April 1. The farmers who opt out can pursue individual, separate lawsuits and damages against Syngenta.
The attorneys contacting farmers are asking the farmers to “opt out” of the class action and allow the advertising law firms to represent those farmers.
Because I represent hundreds of farmers, I am asked my opinion on what our region’s farmers should do.
For producers who are willing to prove their own damages, opting out of the class action may be advisable. However, often, it is easiest to simply remain in the class. I have advised most of my clients to remain in the class action and not opt out. In my opinion, whether a farmer is in or out of the class action is less important than the case’s substance.
In other words, the ultimate question will be whether Syngenta’s failure to get approval from China for Syngenta’s GMO seed corn before selling that seed in the United States was literally illegal and actually caused the price of corn to go down.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.