Deadline nears for rice farmers in Bayer settlement

Monday, September 12, 2011

ST. LOUIS -- The deadline for rice farmers across the county to file a claim in a proposed $750 million settlement offered by Germany-based Bayer CropScience AG is nearing, according to Don Downing, co-lead counsel and lead trial attorney for plaintiffs in a series of trials that began in 2009.

The deadline is Oct. 10, but the paperwork and process to become part of the settlement takes two to three weeks, Downing said.

Farmers representing at least 85 percent of the total farmed rice acreage in the U.S. from 2006 to 2009 must agree to participate in the settlement. If the 85 percent participation threshold is not met, Bayer has the right to walk away from the settlement or adjust its terms

"If this threshold is not met," Downing said, "then it will not only affect the farmers who have not filed claims but those who already have."

Downing, of the St. Louis law firm Gray, Ritter & Graham, said the first step is to retain an attorney, which can be any firm, and begin the paperwork.

The attorneys in the original case filed a class action complaint in 2007. Eastern District of Missouri Judge Catherine Perry denied the class action status, saying "plaintiffs' claims varied too much to fit as a class action." She set up a series of trials that have been called "bellwether" cases, and a Missouri trial was the first. The plaintiffs in the first trial were Kenneth Bell Farms in Bell City and J.H. Hunter Farms in Essex. In the first of the bellwether trials, Bell was awarded $1.95 million in compensatory damages, and Hunter was awarded $53,336 in compensatory damages. The jury did not award any punitive damages.

Several more bellwether trials have been held and the jury has found in favor of the plaintiffs each time. Eventually, Bayer offered the $750 million settlement.

Downing said the results of those trials have been appealed by Bayer. He said if the 85 percent of qualified farmers are met, those appeals would be settled. If not, then the appeal process will continue.

At issue in the original lawsuits was a genetically altered variety of rice that contaminated rice fields in several states. In August 2006, Bayer CropScience found traces of a genetically modified rice in commercial rice samples taken in the U.S. and Europe. The findings resulted in a several countries halting U.S. rice imports, and new testing regulations were instituted by numerous others.

The new strain of rice would have allowed farmers to treat the crop with the herbicide to control weeds and grasses while not affecting the rice itself.

"There's really no way of knowing if the threshold is met until the deadline and all the claims have been tallied," Downing said, "which is another reason why area rice farmers shouldn't delay in filing their claims."

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