Published by Law 360
October 16, 2018, 9:05 PM EDT
Law360 (October 16, 2018, 9:05 PM EDT) — Farmers’ allegations that Monsanto Corp. engaged in anti-competitive practices by pushing soybeans with a tolerance to a specific herbicide should not be dismissed, they argue, because their suit could show that the company knew farmers would be compelled to buy the product.
Farmers engaged in multidistrict litigation in Missouri federal court against Monsanto, and others concerning the company’s dicamba herbicide product and soybeans that are resistant to the herbicide, said that the company twisted facts in its bid to get the allegations tossed. Monsanto produced a herbicide that could easily blow into neighboring farms and damage nontolerant crops, “effectively forc[ing] farmers into buying seed containing Monsanto’s” technology, the plaintiffs’ opposition memorandum said.
“The pressure faced by soybean farmers to buy dicamba-tolerant seeds created an artificial and self-reinforcing demand that allowed Monsanto to reap higher monopoly profits than it otherwise would have reaped given its existing monopoly power,” said the opposition filing. “Monsanto’s conduct was anti-competitive because Monsanto created a problem that only its trait could solve, and its solution restricts supply by literally destroying the competition.”
The company argued that the antitrust assertions by the plaintiffs should be tossed because they are allegedly not direct purchasers, the plaintiffs’ claims are not plausible, and the “relevant markets” at issue aren’t proper, according to the plaintiffs’ memorandum. The farmers said that many of the claims made in Monsanto’s motion to dismiss attempt to argue over facts, which is not proper at the motion to dismiss stage.
“Monsanto takes substantial liberties with its fact section … to support its fanciful story of heroically benefiting farmers and reducing their costs,” the opposition filing said. “That story is contrary to reality.”
The farmers are asserting that dicamba easily drifts into nearby farms. The filing says that the EPA “estimated that dicamba damaged over 3.6 million acres of soybeans” last year — an area about the size of Connecticut. This made farmers scared that if they didn’t purchase the company’s products they’d be harmed, and they paid higher prices for it, according to the filing.
The plaintiffs said they are direct purchasers of the product and that any assertions to the contrary are issues of fact that can be argued over at a later stage. And the injuries and alleged antitrust violation are directly connected, according to the opposition filing.
“Plaintiffs simply allege that Monsanto’s release of dicamba-tolerant technology foreclosed competition in the herbicide-tolerant trait market, causing prices for dicamba-tolerant traits to be higher than they otherwise would be,” the filings said, arguing that this showed a direct connection between the company’s behavior and the alleged harm.
And Monsanto’s contention that the claims “would not make economic sense” for the company fail, according to the farmers’ filing. Monsanto’s contact resulted in the company making billions, according to the memorandum.
There were also debates over whether the complaint properly argued that Monsanto “has market power in either a relevant market or geographic market.” The opposition filing says that the market of herbicide-tolerant traits in soybean seeds works for this suit and should be allowed.
The filing said that the company’s actions were harmful to farmers.
“Dicamba herbicide will literally destroy crops grown with seeds containing competitive traits such that competitors are forced to forego the profits of part or all of their traits due to being forced to license Monsanto’s dicamba-tolerant trait,” the filing said.
Plaintiffs in the MDL also filed oppositions to bids by the company to throw out allegations of improper crop damage.
In February, the Judicial Panel on Multidistrict Litigation ruled that the series of farmers’ lawsuits over crop-damage caused by dicamba and related allegations warranted consolidation.
Representatives for the various parties did not immediately return requests for comment Tuesday.
The plaintiffs are represented by Don M. Downing of Gray Ritter & Graham PC, and James Bilsborrow of Weitz & Luxenberg PC, and Paul Byrd of Paul Byrd Law Firm PLLC, and Paul A. Lesko of Peiffer Wolf Carr & Kane APLC, and Richard M. Paul III of Paul LLC, and Scott E. Poynter of Poynter Law Group, and Beverly T. Randles of Randles & Splittgerber, and Rene F. Rocha III of Morgan & Morgan, and Charles S. Zimmerman of Zimmerman Reed LLP.
Monsanto is represented by A. Elizabeth Blackwell of Bryan Cave Leighton Paisner LLP, and Christopher M. Hohn, Jan Paul Miller, Daniel C. Cox and Jeffrey A. Masson of Thompson Coburn LLP, and John J. Rosenthal of Winston & Strawn LLP.
The case is In re: Dicamba Herbicides Litigation, case number 1:18-md-02820, in the U.S. District Court for the Eastern District of Missouri Southeastern Division.
–Additional reporting by Carolina Bolado. Editing by Jay Jackson Jr.
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