High-powered attorneys sped to file potential class-action lawsuits last week in the wake of an ongoing U.S. Department of Agriculture investigation into how Monsanto’s Roundup Ready Wheat appeared in a stand of volunteer wheat in Oregon. At least three suits have been filed in federal court, seeking to hold Monsanto as negligent, and requesting damages on behalf of farmers allegedly injured by the detection of the unapproved biotech trait.
The first of the three suits surfaced just days after the USDA announcement. Houston-based firm Susman Godfrey filed in the United States District Court for the District of Kansas on behalf of Kansas farmer Ernest Barnes on June 3.
Three days later, two Washington state wheat farmers filed their own would-be class-action suit in Spokane, with firms Tousley Brain Stephens of Seattle and class-action specialists Hausfeld LLP handling the case. Hausfeld earned some measure of infamy in the biotech world for its successful litigation in the StarLink corn case, which resulted in a $110 million settlement (Feedstuffs, July 11, 2011).
According to one legal expert, it’s the sheer size of the 2011 settlement by Bayer CropScience that has likely fueled the legal feeding frenzy.
“It’s a race to the courthouse to attract clients to the class, and to see who will garner the lead role in what could become a multiple-class-action situation,” said John Mandler, a partner with Minneapolis-based Faegre Baker Daniels. An expert in biotech litigation and regulation, Mandler said the number of lawyers emerging to take action in the case isn’t unusual given the history of the StarLink situation.
In addition to the two suits filed on behalf of individual farmers, the Center for Food Safety (CSF), a known anti-GMO advocacy group, also filed suit against the company in the U.S. District Court for the Eastern District of Washington. CSF has a track record for taking legal action in the biotech deregulation process, and says it is representing wheat farmers affected by the “contamination” of the wheat market by the Roundup Ready detection.
“Monsanto has put our farmers’ wheat export market at grave risk,” said Andrew Kimbrell, CSF executive director. “Billions of dollars, and our food supply, is at risk because of Monsanto’s negligence. They must be held accountable.”
The question of accountability, at this point, is still somewhat murky. Monsanto told reporters June 5 that the company could not rule out “accidental or purposeful” spread of the seed in question, but noted that in the 9 years since the company dismantled its Roundup Ready Wheat program, no other detections of the trait have occurred.
USDA is still investigating the situation on the ground in Oregon, but the facts available suggest that the biotech trait was found in volunteer wheat from a single portion (less than 1%, according to Monsanto’s chief technology officer Robb Fraley) of a single field.
“The plaintiffs in these cases will have to come up with some facts to show that this detection had something to do with Monsanto’s action,” Mandler explained. “But on the other hand there is something of a strict liability standard, where Monsanto will need to show how this particular incident occurred and how the seed got to this farmer’s field.”
To that end, Fraley said last week that USDA hasn’t been overly helpful. As of his chat with reporters, the company had not received any samples from which to conduct their own testing or investigation, and had received few details beyond what has been shared by the Department publicly.
While Mandler said the results of the investigation will dictate somewhat the next steps in the possible class-action suits percolating in two federal courts, law firms were likely to continue pressing the issue with the company.
“The question is, is this going to be another Starlink situation,” he explained. “The suits in the Bayer situation generated significant damages and a significant settlement. Obviously we don’t know the facts about how widespread this is beyond this location, but the facts don’t always drive whether litigation gets filed.”