SEVERAL attorneys rushed to file potential class-action lawsuits in the wake of an ongoing U.S. Department of Agriculture investigation into how Monsanto's Roundup Ready wheat appeared in a stand of volunteer wheat in Oregon.
At least three suits have been filed in federal court seeking to hold Monsanto as negligent and requesting damages on behalf of farmers allegedly injured by the detection of the unapproved biotechnology trait.
Susman Godfrey filed in the U.S. District Court for the District of Kansas on behalf of farmer Ernest Barnes on June 3, just five days after the USDA announcement. Three days later, two Washington state wheat farmers sued with firms Tousley Brain Stephens and class-action specialists Hausfeld LLP handling the case.
Hausfeld has some biotech experience thanks to its successful litigation in the StarLink corn case, which resulted in a $110 million settlement by Bayer CropScience (Feedstuffs, July 11, 2001). According to one expert in biotech litigation and regulation, the sheer size of the Bayer settlement is fueling the legal feeding frenzy.
"It's a race to the courthouse to attract clients to the class and to see who will garner the lead role in what could become a multiple-class-action situation," said John Mandler, a partner with Faegre Baker Daniels in Minneapolis, Minn.
In addition, the Center for Food Safety (CSF), a known anti-biotech advocacy group, also filed in the U.S. District Court for the Eastern District of Washington. CSF has a track record for taking legal action in the biotech deregulation process and said it is representing farmers affected by the "contamination" of the wheat market by the Roundup Ready trait.
"Monsanto has put our farmers' wheat export market at grave risk," CSF executive director Andrew Kimbrell said. "Billions of dollars, and our food supply, (are) at risk because of Monsanto's negligence. They must be held accountable."
The question of accountability, though, is somewhat murky. USDA's investigation continues, and Monsanto told reporters June 5 that it could not rule out the "accidental or purposeful" spread of seed in Oregon. In the nine years since it dismantled its Roundup Ready wheat program, there have been no other detections of the trait.
"The plaintiffs in these cases will have to come up with some facts to show that this detection had something to do with Monsanto's actions," Mandler explained. "On the other hand, there is something of a strict liability standard, where Monsanto will need to show how this particular incident occurred and how the seed got to this farmer's field."
While the results of the investigation may dictate the next steps in the possible class-action suits, Mandler said lawyers are likely to continue pressing the issue with Monsanto.
"Obviously, we don't know the facts about how widespread this is beyond this location, but the facts don't always drive whether litigation gets filed," he said.