Cargill, ADM and other plaintiffs want Syngenta corn litigation countersuit thrown out

By Aerin Einstein-Curtis contact

- Last updated on GMT

© iStock.com/dannyone
© iStock.com/dannyone

Related tags: Syngenta, Cereal

ADM, Cargill, Express Grain Terminal LLC and Rail Transfer Inc have recently called for third-party and counterclaims brought against them by Syngenta in the ongoing biotech corn lawsuit to be dismissed.

The Swiss company’s claims that they negligently distributed the MIR 162 corn are pre-empted and unsupported, said the companies.

CASE HISTORY

The case against Syngenta was started in 2014 by Cargill and ADM alleging Syngenta’s sale of a genetically modified corn seed, MIR 162 or Viptera and Duracade, in the US led to millions in losses after China refused imports with the strain.

The litigation action subsequently widened to include corn producers, milo producers and non-producers.

Syngenta requested the lawsuit against it to be tossed out, but, in September 2015, the case was allowed to move forward in the US District Court for the District of Kansas.

In November, the Swiss company brought a countersuit against members of the original lawsuit alleging the duty to isolate the corn fell to grain elevators, transporters and exporters.  

“Syngenta now seeks to shift responsibility for the consequences of its decisions to parties that opposed Syngenta’s actions,”​ said lawyers for Cargill and the other firms in case documents.

Those attorneys argued, in a filing in the US District Court for the District of Kansas last month, that it is Syngenta who must bear the risks of its decision to introduce a new transgenic grain into the commercial market before obtaining all import approvals and not the grain handlers, transporters, and exporters who were “simply confronted with that decision.”

They said that by filing third-party claims and counterclaims, Syngenta is seeking to make parties who opposed its unilateral actions joint wrong doers with Syngenta for the harm that the Swiss company’s decisions caused.

“The law does not permit Syngenta to do so. Syngenta’s contribution and indemnity third-party claims and counterclaims are pre-empted by federal law, are not based on a duty that is recognized under the law, and fail under various states’ laws. Accordingly, those claims should be dismissed with prejudice,” ​found the attorneys for Cargill and the other plaintiffs.

Claims against Rail Transfer 'frivolous'

Rail Transfer has made an individual request to have the counterclaims against it dismissed, with that company's lawyer, Hart Robinovitch, terming Syngenta’s claims as “reactive and patently frivolous.”

They were brought by Syngenta as a means to penalize the company for agreeing to serve as a class representative for non-producers, he said.

Syngenta has asserted that Rail Transfer was in a position to stop movement of the biotech corn, said Robinovitch in case documents. But the company has said that it offers loading and logistical services for exporting DDGS, it does not mix or own the DDGS being moved.

“Syngenta’s counterclaim attempts to hold Rail Transfer, a small, localized rail loading company in St Paul, Minnesota liable for the entire national problem Syngenta caused and drag them into thousands of courts in states they never did business in to defend those baseless clams,”​ he said.

The company did not establish a “plausible”​ link between Rail Transfer’s work and the injuries suffered by the plaintiffs, and, there is no reason why if Syngenta is found liable the consequences should fall to Rail Transfer, he said. “Syngenta makes no factual allegations about how Rail Transfer supposedly purchased, handled, commingled, sold, transported or otherwise controlled the corn so to create any duty,”​ he added.

US corn handling regulation 

The arguments regarding the entire group also do not hold, said lawyers for Cargill et al. Claims about managing corn are pre-empted by the US Warehouse Act and US Grain Standards Act, which regulate how corn is handled, said the legal representatives.

Additionally, Syngenta cannot establish that it was the duty of other companies to minimize risk from its actions, they said.

“There is a critical difference between Syngenta’s affirmative action in commercializing Viptera and Duracade, and the third-party defendants’ non-action in declining to reorganize the way the industry handles grain in response, such as by undertaking testing and segregation to a level that would satisfy China’s zero-tolerance policy,” ​said the attorneys. “Syngenta engaged in affirmative misconduct that contributed to the plaintiffs’ harm; the third-party defendants did not.”

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