In our Ag & Food Law Update from September 28, 2016, we summarized In re: Syngenta Ag Mir 162 Corn Litig., No. 14-MD-2591-JWL, 2016 WL 5371856 (D. Kan. Sept. 26, 2016), which concerned a motion for class certification on behalf of corn producers asserting claims against Syngenta regarding its corn seed products, Viptera and Duracade. Plaintiffs allege Syngenta’s commercialization of those products caused corn containing MIR 162 “to be commingled throughout the corn supply in the United States and that China rejected imports of all corn from the United States because of the presence of MIR 162.” At that time, the court concluded that “certification of one nationwide class and eight statewide classes is appropriate under FRCP 23,” and granted plaintiff’s motion certifying the class.

Earlier this month, Syngenta appealed claiming that “the certification decision rests on fundamental errors on issues of law that this Court has not resolved.” Citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), Syngenta’s counsel argued, “The mere fact that an expert gets across the starting line on the threshold issue of admissibility does not mean that he automatically carries the day and that certification becomes inevitable. The district court’s approach cannot be squared with the demand for a ‘rigorous analysis’ requiring a plaintiff to ‘affirmatively demonstrate’ compliance with Rule 23.” More specifically, Syngenta’s appeal maintains the District Court erred by failing to weigh conflicting expert opinions, and by disregarding the fact that “even with the classes certified, tens of thousands of suits remain to be resolved individually.”

Additionally, a spokesperson for Syngenta told AgWeb, “Syngenta strongly believes that class certification is inappropriate in this case, particularly given the widely varying ways in which farmers grow and sell corn in different markets across the U.S. Syngenta firmly believes that the Viptera China lawsuits lack merit and that Agrisure Viptera was commercialized in full compliance with regulatory and legal requirements.”

Per the Progressive Farmer, the class will remain in place and the lawsuit will continue until the appeals court issues a ruling. Donald Swanson, an attorney with Omaha-based Koley Jessen PC, told the website that the 10th Circuit can deny the request to appeal, or “grant the request [for permission to appeal], but then certify . . . or reverse the district court’s class certification order.”

A copy of the Syngenta appeal is available here.