Monsanto Faces Farmer Antitrust Suit on Dicamba, Resistant Seed

Monsanto Co. signage is displayed during the Farm Progress Show in Decatur, Illinois, U.S., on Tuesday, Aug. 29, 2017. Photographer: Daniel Acker/Bloomberg

Monsanto Corp. faces a treble damages class action alleging that its pesticide Dicamba poses such a risk to farmers they are forced to purchase resistant seed — marketed under patent at high prices by Monsanto — to avoid catastrophic damage to their crops from pesticide drift.

A North Dakota farm alleges it bought and Monsanto’s dicamba-resistant soybean seeds to avoid damage from nearby farms using the pesticide. The complaint, filed Feb. 1 in Missouri federal court, says that Monsanto recklessly marketed a pesiticide shown to be very volatile and very mobile from target fields to neighboring areas. As a result, it alleges, farmers with no intention to use Monsanto’s dicamba pesticide still must purchase its marketed resistant cotton and soybean seeds or risk heavy crop damage.

“Monsanto’s monopolization and attempted monopolization of the seeds market stymies competition, hurts producers, and harms the public at large,” the plaintiff Forest River Farms alleges. It alleges a class of “all individuals and entities who directly purchased seeds containing Monsanto’s dicamba-resistant trait.”

‘Drift’

Monsanto markets its dicamba, broad-spectrum weed killer under the name XtendiMax as a system with resistant seeds. Dicamba has come under scrutiny because it tends to vaporize and “drift” from treated fields to neighboring crops. Arkansas and Missouri responded to complaints of damage to crops near dicamba treated fields by banning its sale and use in July 2017.

Monsanto responded that it has developed a “low drift” version of the pesticide. According to Monsanto, “XtendiMax®Herbicide with VaporGrip®Technology has been approved for in-crop use as part of the Roundup Ready®Xtend Crop System in 33 states in 2018.” Monsanto announced on Feb. 1 that will provide mandatory training sessions for farmers on use of the weed killer for free in 26 of those states.

On Feb. 1, a federal judicial panel consolidated nine lawsuits against Monsanto filed in four different states alleging crop damage from dicamba into the U.S. District Court for the Eastern District of Missouri, the same court in which Forest River Farms filed its lawsuit. Those cases allege that Monsanto marketed dicamba-resistant seeds knowing that would tempt farmers to use dicamba — which has proven destructive to neighboring crops — before Monsanto had regulatory approval to market its low-drift version of the pesticide.

The crop damage cases, which are based on different state and federal claims than Forest River Farms’ antitrust case, will be heard together before Judge Stephen N. Limbaugh, Jr.

To contact the reporter on this story: Eleanor Tyler in Washington at etyler@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com