Syngenta has filed a third party claim against Cargill, Archer Daniels Midland (ADM) and two other smaller grain handlers. The company argues if Syngenta is blamed for damages due to the export rejection of MIR162, commercial name Agrisure Viptera, then grain handlers are also at fault for physically sending it to China and other governments before receiving approval.
The claim was filed in the U.S. District Court of Kansas and is connected to China’s 2013 rejection of U.S. corn that had been found with traces of the then-unapproved MIR162. “Syngenta filed claims on November 19, 2015, against Cargill, ADM and other grain elevators, shippers and exporters that have filed suit against Syngenta in the Viptera China lawsuits,” says Syngenta attorney Michael Jones.
Thousands of farmers are suing Syngenta over the rejection, alleging that the company caused loss of corn sales which lead to economic losses all because they marketed Viptera before it had approvals.
But Syngenta argues gain handlers are to blame. According to the third-party claim against the handlers, “each elevator, transporter and exporter, including the Third-Party Defendants, exercises discretion in determining whether and how to accept particular types of corn.” Syngenta claims grain handlers who accepted Viptera had the responsibility not to commingle the trait with the general supply as they could reasonably foresee China might reject it for the presence of Viptera.
“If any duty exists to restrict U.S.-approved GE traits solely because they have not been approved by a foreign government, then it is grain exporters and other grain traders who are responsible for handling the grain that they process and transport, and who make their own decisions over what they will and will not ship outside of the U.S.,” Jones says. Cargill and ADM declined to comment on the claim.
“This lawsuit makes a lot of sense from a legal perspective,” says Kristin van de Biezenbos, assistant professor at Texas Tech University School of Law. “Syngenta is saying ‘if we are at fault, grain handlers are too because it would not have gotten to China without them.’”
If Syngenta is found negligent in the Viptera lawsuit, its goal is to prove Cargill, ADM and other grain handlers were contributors to the negligence by not segregating the trait, van de Biezenbos says. “The grain handlers could argue they don’t have to segregate corn, that’s not the way it’s done, not an industry standard and not feasible to keep separate.”
China has a zero tolerance policy if they discover an unapproved trait. “Maybe it’s an issue of not being able to stop all traces. What would they (grain handlers) have to do to stop that from happening?” she says.
If Syngenta is found negligent for selling the trait and Senior Judge John W. Lungstrom, who is hearing the case, agrees with Syngenta that grain handlers are also at fault, he could assign a percent of damages to be paid to farmers by each party, van de Biezenbos says.