On August 31, 2007, Syngenta promised the United States Department of Agriculture (“USDA”) that its GMO strain MIR 162, which had not yet been approved by all our major corn export partners, would not be mixed in with other corns approved for export abroad:
There should be no effects on the U.S. maize export market since Syngenta is actively pursuing regulatory approvals for MIR 162 maize in countries with functioning regulatory systems for genetically modified organisms and that import maize from the U.S. or Canada . . . . Syngenta’s stewardship agreements with growers will include a term requiring growers to divert this product away from export markets (i.e., channeling) where the grain has not yet received regulatory approval for import. Syngenta will communicate these requirements to growers using a wide-ranging grower education program (e.g., grower Stewardship Guide). As noted in the context of the IRM program, these procedures are not hypothetical.
Corn exporter Bunge North America learned that China had not approved MIR 162 and posted signs outside its grain elevator in Monticello, Iowa, telling farmers that it would not accept MIR 162 corn. Syngenta sued Bunge in federal court in Iowa, claiming product disparagement and seeking a court order to force Bunge to take down the signs. In an opinion dated September 26, 2011, United States District Judge Mark W. Bennett initially framed the case as follows:
Can a grain elevator company refuse to accept certain corn at its facilities, on the ground that the corn has not received approval from “major” export destinations, and post signs stating this, when the seed producer has received clearances from the United States and several foreign countries, but not from China or the European Union? The seed producer argues that the grain elevator company cannot do so, at least not without violating the United States Warehouse Act (USWA), 7 U.S.C. § 241 et seq., comparable provisions of state statutory and common law, and the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), and causing irreparable injury to the seed producer’s business and reputation. Thus, the seed producer seeks a preliminary injunction against the grain elevator company enjoining the grain elevator company’s refusal to accept the transgenic corn, while the seed producer litigates its USWA, Lanham Act, and state common-law and statutory claims. The grain elevator company counters that the seed producer has no likelihood of success on its claims, because there is no private right of action under the USWA; the seed producer has no standing to assert such a claim if a private right of action does exist; all of the grain elevator company’s elevators are licensed pursuant to the USWA, which preempts state statutes and common law; and the grain elevator company is not a competitor of the seed producer, which defeats the seed producer’s Lanham Act claim. Moreover, the grain elevator company argues that it will be disproportionately harmed, if the court grants the preliminary injunctive relief requested.
Syngenta Seeds, Inc. v. Bunge North America, Inc., 820 F. Supp. 2d 953 (N.D. Iowa 2011). Judge Bennett denied Syngenta’s request to require Bunge to take its signs down. He concluded that the USWA did not create a private right of action, that Syngenta lacked standing to bring an action under the USWA, that Syngenta had failed to establish a likelihood of success on the merits of its USWA claims, that the USWA preempted Syngenta’s state law claims, that Syngenta failed to establish a likelihood of success on the merits of its Lanham Act claims, and that the balance of equities tipped against preliminary injunctive relief.
On appeal, the United States Court of Appeals for the Eighth Circuit affirmed Judge Bennett’s decision dismissing Syngenta’s USWA and third-party beneficiary claims on the pleadings, yet vacated his order granting summary judgment to Bunge on Syngenta’s Lanham Act claims.
Two months later, China announced it would accept U.S. export shipments of corn including MIR 162 corn. The parties then settled their differences and Syngenta dismissed the lawsuit against Bunge in December 2014.
* This information is provided to supply relevant information concerning the GMO corn lawsuit, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. If you have another lawyer in the GMO Corn lawsuit, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.