Judge grants Mosanto's motion to dismiss farmers' suit over Xtend seeds

By Marian Johns | Apr 9, 2019

CAPE GIRARDEAU – A federal court has granted Monsanto's move to dismiss a complaint filed by a Missouri farmer alleging a conspiracy to monopolize a more-expensive seed.

U.S. District Judge Stephen Limbaugh Jr. agreed with the defendant and stated the plaintiffs did not "adequately" show they were direct seed purchasers, according to a March 13 order.

He cited Kloth v. Microsoft Corp. in which the Fourth Circuit Court ruled that even though consumers entered into a license agreement to purchase software, it does not make the consumer a "direct purchaser."   

He concluded that since the plaintiffs' allegations don't support the fact that they were direct purchasers, the complaint would be dismissed and that the "court need not consider defendant's other arguments in favor of dismissal," the ruling states.

Plaintiffs Sam Branum, a Missouri farmer, and Wapsie Farms Partnership alleged Monsanto had "artificially increased demand" of its herbicide-resistant Xtend seeds to gain "monopolistic profits," the ruling states. Monsanto petitioned the court to have the case dismissed. 

According to the court filing, Monsanto developed Xtend seeds, which contain a genetic trait that allows them to tolerate herbicide application such as Roundup and dicamba. Since the dicamba herbicide tends to "drift" to other crops and cause damage, Monsanto allegedly joined forces with the makers of dicamba, BASF Corp., to develop a "new dicamba" called XtendiMax that would be less prone to drift to other crops and cause damage like the original dicamba. 

The plaintiffs claim that both the old and the new dicamba still spreads and results in damage to other crops.

"Because of their fear of crop damage, plaintiffs allege that they and other farmers are forced to defensively purchase and plant Xtend seeds, which cost more than other seeds," the ruling states.

Monsanto argued the plaintiffs lack of standing as "indirect purchasers," failed to show an antitrust violation and failed to show specific intent for monopoly and conspiracy. The plaintiffs argued they are "direct purchasers" of Monsanto's seeds due to a license agreement with Monsanto to use the company's "trait technology" as part of a seed purchase.

A spokesperson for Bayer, which acquired Monsanto last year, issued the following statement on Limbaugh's ruling:

"We are pleased with the Court’s decision to dismiss this antitrust complaint. We appreciate that the Court considered all facts to determine that the plaintiffs’ allegations do not support that they have standing under the Sherman Antitrust Act to assert any claims relating to Monsanto’s dicamba-tolerant seeds or traits. 

"Farmers have a variety of choice when it comes to what seed to plant and which herbicides to apply. For those choosing to apply XtendiMax with VaporGrip Technology over-the-top of dicamba-tolerant soybeans and cotton, Monsanto remains committed to robust education and training to help growers prepare for successful on-target applications."

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Monsanto Company U.S. District Court for the Eastern District of Missouri Southeastern Division

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