Genetically modified justice?
by GM Watch editor, Claire Robinson
"Judge Rejects Class Action Against Seed Producers" ran the headline to an article this week in the New York Times. The article says a federal judge has denied class-action status to an antitrust lawsuit that accused some of the world's biggest agricultural seed companies of conspiring to fix prices.
The decision is a severe blow to a case brought in 1999 by some of the nation's most prominent antitrust lawyers, who accuse Monsanto and other big agricultural seed makers of trying to control the market in GM seeds in the 1990's.
Judge Rodney W. Sippel of Federal District Court in St Louis (Monsanto1s home town) wrote in a 20-page ruling that the plaintiffs had not provided "common evidence" to show that a broad class of farmers had been affected by the conspiracy described in the suit.
Judge Sippel sided with the companies, who argued in April that the pricing data for seeds was so varied, complicated and tied to geography, seed types and other conditions that there seemed no way to prove that a large group of farmers were affected.
The lawyers who brought the antitrust suit on behalf of a group of farmers said they planned to appeal. Richard Lewis, a lawyer at Cohen, Milstein, Hausfeld & Toll, the law firm that filed the suit, said, "The allegations of wrong doing remain, and this opinion says nothing whatsoever about those allegations.'
Just a week ago, Judge Sippel ruled that the antitrust case could go forward. But he dismissed a part of the class-action suit that sought relief for farmers who lost money after some export markets were closed to GM crops.
The lawyers who filed suit, however, have argued in court that they have already seen internal records from the seed companies that show that a conspiracy took place.
This isn't the first time that Judge Sippel, who is based in Monsanto's home town St Louis, has ruled in favour of Monsanto, as the following articles show:
See article 1, below.
Summary: In January 2000, Monsanto sued farmer Kem Ralph for having illicit Roundup Ready seeds in his fields. Judge Sippel ordered Ralph not to move the seed and told him to pay Monsanto $100,000. Ralph burned the seed. Sippel dismissed his defence that he'd never signed a Monsanto technology agreement so couldn't be found guilty of violating it. Sippel handed down a ruling that he had violated the agreement and based on this ruling, a jury ordered Ralph to pay Monsanto $1.7 million. This year, Ralph was charged with mail fraud for burning the seed; he was sentenced to eight months in prison and ordered to pay the company $165,469 more.
See article 2, below.
Summary: Ralph's lawyer James Robertson, speaking of the $1.7 million costs awarded against his client, said the judge [Sippel] did not allow the defense to present all its evidence, including what it claims is proof that Ralph's signature was forged on the grower license agreement. Other farmers have made similar claims.
Sippel's rulings calls to mind the old saying that "Interpretation is nine-tenths of the laww". How people do interpret the law must depends in part on their background and formative influences. For Sippel's formative influences, read on!
"Sippel is a U.S. District Court judge for the Eastern District. After his first year of law school, he joined U.S. Sen. Thomas Eagleton's staff in St. Louis and worked as a field director in the senator's 1980 re-election campaign. Before becoming a judge in 1998, he worked at the St. Louis firm now known as Husch and Eppenberger and served as administrative assistant to U.S. Rep. Richard A. Gephardt."
Who are Husch and Eppenberger?
"Both Thompson Coburn and Husch & Eppenberger are among the biggest law firms in the region and represent the corporate elite of St. Louis. They share some clients, including Monsanto Co."
- Rick Desloge, "Key Thompson lawyers defect to Husch", St Louis Business Journal
Monsanto's licensing agreements gives the company the choice of having lawsuits heard in St Louis.
And what about US Rep. Richard A Gephardt?
US Rep. Richard A Gephardt's source of funding for the 1994 election:
Monsanto Co, $24,675
for the 1996 election:
Monsanto Co, $6,000
This is a world were all roads lead to St. Louis.
The US Supreme Court, on Dec. 10, 2001, ruled 6-2 that plants - any plants - can be patented. Attorney General and Missourian John Ashcroft asked for the ruling, which was written by [former Monsanto attorney] Clarence Thomas.
Prior to being the Supreme Court Judge who put G.W. [Bush] in office, Clarence Thomas was Monsanto's lawyer. The U.S. Secretary of Agriculture (Anne Veneman) was on the Board of Directors of Monsanto's Calgene Corporation. The Secretary of Defense (Donald Rumsfeld) was on the Board of Directors of Monsanto's Searle pharmaceuticals. The U.S. Secretary of Health, Tommy Thompson, received $50,000 in donations from Monsanto during his winning campaign for Wisconsin's governor. The two congressmen receiving the most donations from Monsanto during the last election were Larry Combest (Chairman of the House Agricultural Committee) and Attorney General John Ashcroft. (Source: Dairy Education Board)
1. Excerpts from - Monsanto reaps some anger with hard line on reusing seed: Agriculture giant has won millions in suits against farmers
By Peter Shinkle
St Louis Post-Dispatch
A farmer secretly gathers seed, glancing nervously over his shoulder and wondering whether a neighbor might dial the anonymous tip hot line.
A corporation sends out spies and goes out of its way to make examples out of growers it catches violating patents.
A defiant farm owner makes a stand and is sentenced to prison.
It's a hardball battle out there between an uncounted slice of farmers and Monsanto Co., the agricultural giant based in Creve Coeur that assembled a staff of 75 and a budget of $10 million a year to win it.
For years, Monsanto fought environmentalists over potential effects of its genetically modified seed. Now, it's fighting activists who embrace the seed but not the contract that comes with it.
Farmers generally find the seed easier and cheaper to use. But some resent a purchase contract that says they cannot reuse seed from the crops they grow.
More and more, their differences are ending up in court. Often, that's federal court in St. Louis. In fact, farmers agree to the court venue, convenient to Monsanto, when they sign the agreement.
So onsanto began investigating [farmer Kem] Ralph's handling of Monsanto seed. In January 2000, it sued in federal court claiming that testing discovered illicit Roundup Ready seeds in Ralph's fields in 1999.
At Monsanto's request, U.S. District Judge Rodney Sippel ordered Ralph not to move his crops or seed.
But on March 2, 2000, he took a truckload of cotton seed from his farm and dumped it into a gravel pit. With the help of his brother and some farm workers, he used tires and diesel fuel to start a fire that burned for two days.
When Ralph told his lawyer, Lou Leonatti of Mexico., Mo., about the burning, Leonatti reported it to Monsanto's lawyers. A few days later, Monsanto investigators took samples at the burn site.
On March 24, 2000, Ralph unburdened himself, admitting he burned an estimated 900 bags of saved seed.
His actions would cost him. Judge Sippel ordered Ralph to pay Monsanto about $100,000. Sippel also threw out Ralph's defense, which included a claim that he had never signed a Monsanto licensing agreement.
Under Sippel's ruling, Ralph was automatically found to have violated the agreement. A jury considered only how much he would have to pay Monsanto for using the seed improperly, and it settled on $1.7 million.
In February 2003, Ralph pleaded guilty in St. Louis to conspiring to commit mail fraud when he helped Hendrix [the farmer who originally saved the seed] hide the saved seed. His plea included a finding that Ralph had obstructed justice by burning the seed.
On Wednesday, Ralph was sentenced to eight months in prison and ordered to pay the company $165,469 more.
Monsanto has built a whole department to enforce its seed patents and licensing agreements. It has 75 employees and an annual budget of $10 million, said spokeswoman Shannon Troughton.
The company tries to settle with farmers before taking them all the way to court, but that doesn't always work out, Troughton said. It often turns to Husch & Eppenberger, the big St. Louis law firm that handles much of the company's legal work.
Of the 73 suits filed against farmers, 30 of them are in federal court in St. Louis because of a provision in the licensing agreements that gives Monsanto the choice of having them heard here. The other cases are spread over 19 states ranging from Nebraska, east to New Jersey, and from Michigan, south to Louisiana.
Monsanto also distributes information to farmers and seed companies about its court victories, including five cases that have gone to trial.
A "Seed Piracy Update" brochure published by the company lists the Ralph case as well as judgments of $780,000 against farmer Homan McFarling of Mississippi and $593,000 against Bill "Dude" Trantham of western Tennessee.
When Ralph appeared in federal court for sentencing Wednesday, Baucum, Monsanto's lead manager for intellectual property stewardship, told the judge that others would make decisions "according to the results here today."
Paul D'Agrossa, attorney for Ralph, told the judge that Monsanto has distributed information about his client in an effort to damage his reputation and "destroy his family."
Emerging from court after Judge Richard Webber sentenced Ralph, D'Agrossa said: "I don't believe justice is served by sending Mr. Ralph to jail for one day. As far as I'm concerned, it's a pound of flesh Monsanto has been after for a long time."
Baucum said later: "We have not been focused on doing anything to Mr. Ralph. We have been focused on defending our interests."
Some critics contend that Monsanto has gone too far.
Missouri state Rep. Wes Shoemyer, a Democrat from the rural northeastern part of the state, complained that the company's commercials encourage farmers to inform anonymously on each other.
"They put a rift in the social fabric of America that I absolutely abhor: Look at your neighbor as someone to turn in," he said.
2. Excerpt from an article about the same Monsanto lawsuit against farmer Kem Ralph:
- W. Tenn. grower awaits its fine in Monsanto case
SOURCE: The Commercial Appeal, USA, by Richard Thompson
Jan 7, 2003
Ralph's lawyer, James Robertson of Wise Carter Child & Caraway in Jackson, Miss., said his client has appealed an October 2001 judgment by Sippel against [farmer Kem] Ralph that led to the jury trial on damages. The verdicts, which might also include Monsanto's legal fees and court costs, "could drive these people into bankruptcy," Robertson said of the impact on his client.
The lawsuit began in 2000. In October 2001, Ralph was found guilty of saving, replanting and selling Roundup Ready soybean seeds and cotton seeds in 1999 and 2000. The seeds are genetically engineered to be resistant to Roundup so that only weeds, not the crops, die when exposed to the herbicide.
Replanting the patented seeds violates Monsanto's grower license agreement because growers are allowed to use the seeds for one commercial crop. Growers have to pay Monsanto for each use because of the patent, said Janice Armstrong, a Monsanto spokesman.
Robertson said the judge [Sippel] did not allow the defense to present all its evidence, including what it claims is proof that Ralph's signature was forged on the grower license agreement. Other farmers have made similar claims.