Attorney Kevin Dellett
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Corn Litigation

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Fact Sheet: Corn-market damages litigation, aka “Syngenta litigation”

Syngenta AG MIR162 Corn Litigation, U.S. District Court., (D. Kansas at Kansas City), Case No. 14-md-2591; Hon. John W. Lungstrum

The U.S. ranks first in the world in corn production, annually exporting a large portion of its production.

  • 2013 Production: 13.9 billion bushels, from 87.7 million acres, 158 bu/acre avg; Avg price $4.40/bu
  • 2014 Production: 14.2 billion bushels, from 83.1 million acres, 171 bu/acre avg; Avg price $3.70/bu
  • 2015 Production: 13.6 billion bushels, from 80.7 million acres, 168.4 bu/acre avg; Avg price $3.60/bu
  • 2016 (est.):          14.5 billion bushels, from 86.6 million acres, 168.0 bu/acre avg; Avg price $3.40/bu*
Source: NCGA, World of Corn 2016
Source: Corn & Soybean Digest, 7/18/16
 
 

Per the USDA, China was the 3rd largest importer of US corn in 2012-13 (5.6 million metric tons), and exceeded these numbers in 2013-14 (importing 12.4 million metric tons through November 2013).* The USDA had forecast that China would be the leading importer of US corn by 2020.

* Source: USDA Foreign Mkt Svc, Grain: World Markets and Trade, Sep. 2016  
 

In November 2013, China stopped importing US corn when it found trace amounts of MIR162 corn, a genetically-modified variety of corn marketed by Syngenta, a Swiss seed company.

Syngenta’s MIR162 corn

Marketed to US farmers as genetically engineered to protect corn from insects and thereby increase yield, seeds with this genetic trait were approved by the US, Brazil, Argentina and various other countries. (Syngenta submitted the GMO seed trait for approval to China in 2010, but MIR162 had not been approved by China at the time of release onto the US market.) In the US, Syngenta marketed a GMO seed called Viptera beginning in 2011 and continued to aggressively market Viptera through the 2012 and the 2013 crop years (even after China’s Ministry of Agriculture issued a rejection and deficiency letter to Syngenta in May 2012). Ignoring China’s November 2013 termination of corn trading with the US due to genetically modified seeds, Syngenta began marketing another seed with the MIR162 trait, known as Duracade in 2014, despite China’s disapproval of Viptera.

Source: Class-Action Producer Plaintiffs’ Second Amended Complaint  
 

Syngenta had a duty to US corn farmers

Despite the fact that Syngenta knew that China was a major importer of US corn and that MIR162 had not been approved by the Chinese government, Syngenta disregarded the advice of industry experts to delay the release of the GMO corn into the US market.* Syngenta even ignored its own standards which state that “until a country issues a registration approval for cultivation and/or food and/or feed consumption, there is a clear responsibility and liability,” and that Syngenta has a stewardship obligation “to prevent trade disruptions.”**

*Source: Natl. Grain & Feed Assn/North Am. Export Grain Assn Joint Statement, Jan ‘14
**Source: Syngenta Foundation for Sustainable Agriculture
 
 
 

Some studies have shown that Syngenta’s MIR162 seed only accounts for about 3% of US corn, planted in the last 2-3 growing seasons, but even that small percentage is still too high to ensure that it won’t be commingled with export shipments.

US market damages

The loss of the large Chinese corn market caused US corn prices to slide in late 2013 as news hit the market, and to tumble beginning in early 2014. As detailed above, for the 2014 and 2015 crop years, US corn prices averaged $.75 less per bushel than before China terminated trade. The National Grain and Feed Association conducted an economic impact analysis of the loss of the Chinese market, projecting damage to the US grain industry of $1 billion to $2.9 billion. Syngenta’s negligent introduction into the US market of genetically modified corn it knew had not been approved by China, resulted in huge losses for every US corn farmer.

Latest figures (2016): “USDA is projecting that 2016-17 corn ending stocks will rise to nearly 2.1 billion bushels by 9/1/17, which would be the largest corn carryover level in many years. USDA is now projecting 2016-17 market year average (MYA) corn price in a range of $3.10 -- $3.70 per bushel, or an avg. of $3.40 per bushel. The marketing year for the 2016 crop year will run from 9/1/16 through 8/31/17. The final 2015-16 national MYA price is now estimated at $3.65 per bushel, and the final 2014-15 MYA price was $3.70 per bushel. These lower annual corn MYA prices followed much higher corn MYA prices of $4.46 per bushel in 2013-14 and $6.89 per bushel in 2012-13.”

Source: Corn & Soybean Digest, 7/18/16  
 

MDL Litigation

Beginning in 2014, corn farmers across the US began filing lawsuits against Syngenta. These suits have been consolidated under federal civil procedure into a “multi-district litigation (MDL)” lawsuit pending in federal court in Kansas City, Kansas, before Senior Judge John W. Lungstrum. The Court denied Syngenta’s motion to dismiss in September 2015, allowing the MDL to proceed. The Court has appointed a Special Master for settlement and ordered all litigants to communicate and cooperate with the Special Master. This signals the Court’s belief that settlement is in all parties’ interests.

Plaintiff experts testifying before Judge Lungstrum on September 13, 2016, cited a World Bank study of commodity markets that suffer a shock that causes +/- price fluctuation, which concluded that commodity markets require 5-8 years to fully recover. Plaintiffs lawyers, thus, seek at least 5 years’ damages for US farmers.

One vital issue currently before the Court is the question of certification of the case as a Class-Action. If certification is approved, arguably all US corn farmers could “opt in” to the Class without filing a lawsuit, and to obtain a portion of the Class Settlement (probably after submitting data from their FSA 578 forms and their load sheets). If certification is denied, then the only way for a US farmer to recover any damages will be to have his/her own lawsuit on file with the appropriate court within the appropriate statute of limitations (“SOL”), also known as a “bar date”. Many states have a bar date of two years from discovery of the negligence – here, probably November 18, 2013; however, those statutes of limitation have been tolled or suspended while the Court considers class certification. Many lawyers within the suit believe that the Court will deny certification, will lift the tolling, and will set a date-certain by which all suits must be filed. Judge Lungstrum has pledged to rule on certification in October, and has set an October 4, 2016, status conference.

Time is now of the essence. It is important for any US corn farmer who has not yet filed suit to promptly retain counsel who can protect their interests and be prepared to file suit as soon as possible. The Law Office of Kevin E. Dellett, Chtd. is prepared to assist you in this process. We presently represent over 30 plaintiffs with nearly 30,000 affected acres. We work with experienced lawyers in Baton Rouge, Lousiana, who have years of experience in mass-tort litigation. We will file your suit before the bar date, and we will assist you in filing the necessary documentation with the Court – your FSA 578’s and a Plaintiff Fact Sheet, so that you have a right to either “opt in” to a Class Action (if approved), or so that you have a lawsuit on file and the ability to proceed after the bar date if the Class is not certified. Finally, we have the ability to aggressively litigate your case if necessary, and are building relationships every day with other plaintiffs’ lawyers in the event you authorize us to negotiate settlement with Syngenta, acting with a bloc of other plaintiff farmers.

Please contact us to discuss how we might help you recover your damages. Thank you!


FIRM BIO

Attorney Kevin E. Dellett has deep Kansas and Midwest roots, and a 20-plus year professional history of protecting the rights and interests of Kansas residents and business.

Born in Garden City, Finney Co., Kansas in 1967, Kevin is at least a 5th-generation Kansan. His maternal family from Harper County, Kansas, has tenant-farming roots. His paternal family includes long-established Rush, Barton and Hodgeman County farmers. Kevin’s paternal uncle ran the Co-op Grain Elevator in Rush Center for many years, and his cousin owns Dellett Auction Service in LaCrosse.

Kevin grew up on a small ranch in Ellis County, which he helped his parents tend, while his father pursued his main career as an oilfield toolpusher, retiring after 40-plus years with Murfin Drilling Co. Kevin was active in 4-H, and helped raise his own livestock in high school, incl. cattle, horses and hogs.

Kevin graduating from Hays High School in 1985 and attended FHSU for one year, where he was active in student government. Kevin transferred to the University of Kansas, where he was active in political campaigns and fraternal life, graduating with a B.A. in History in 1991. Always a leader, Kevin served in 1988 as Kansas State President for Kansas DeMolay, a young man’s fraternal organization sponsored by the Kansas Masonry, traveling frequently across Kansas (from Pittsburg to Saint Francis, and from Atchison to Garden City).

After college, Kevin worked as a paralegal in Kansas City for a major firm, spending the first year in the Corporate Department, assisting local and national businesses of all sizes with corporate transactions, accounting audits, compliance issues, and litigation monitoring. For two years, Kevin worked in the Litigation Department, assisting attorneys in suits pending at all levels. Kevin was the lead paralegal in the firm’s representation of the City of Kansas City, Missouri, against a major Canadian real estate developer in what has become known as “the Union Station lawsuit.” This 6-year suit involved three major corporate defendants and a fact pattern spanning twenty years, and involved the production of over 1,000,000 pages of discovery and 50-plus deposition transcripts, which Kevin helped to manage. The case ultimately resulted in the City’s recovery of the Union Station building, leading to its redevelopment into the beautiful City treasure which it is today. Kevin still applies the litigation management strategies learned long ago in his practice.

Kevin attended KU School of Law, where he was active in the Defender Clinic and the Legal Aid Clinic, developing a passion for helping the wrongfully accused and the underprivileged in a variety of legal matters. Kevin graduated in 1994 and worked in Kansas politics that Fall. Kevin opened the Firm in August 1995 in Overland Park, and has practiced on his own since.

Kevin has appeared in litigation in over half of Kansas’s counties, as well as in all Kansas federal courts, and in the federal courts in Omaha and Lincoln, Nebraska, and Kansas City and Springfield, Missouri.

For 20-plus years, Kevin’s practice focus has always been civil and criminal litigation, and he frequently represents the “little guy,” whether someone accused of wrongdoing by the Government, or small businessman struggling to earn a living on narrow margins. Kevin strives to develop personal relationships with all players in a matter, knowing that when people know, like and understand each other, common ground can always be found to resolve disputes.

Kevin’s participation in the Syngenta litigation carries on this tradition by helping Kansas farmers, all small businesspeople, to make a living in a tough environment, made even tougher by the greedy, negligent actions of a large international corporation which disregarded its duties to American farmers, ultimately doing serious, long-lasting damage to America’s corn industry and causing thousands of dollars in lost income to Kansas farmers.


Attorney Kevin Dellett is licensed in Kansas. The Overland Park, Kansas, criminal defense Law Office of Kevin E. Dellett represents clients in Overland Park, Lenexa, Kansas City and surrounding communities, including Countryside, De Soto, Edgerton, Fairway, Gardner, Leawood, Merriam, Mission Hills, Mission Woods, Prairie Village, Roeland Park, Shawnee Mission, Spring Hill, Stanley, Stilwell, Westwood Hills, Leavenworth, Paola and Mound City. The Firm associates with legal counsel to represent clients in Missouri courts.
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