We have spoken with farmers who often don’t know the differences between class actions and ‘mass actions’. This is understandable. Some lawyers don’t really know the differences between class actions and ‘mass actions’. These areas of the law are not areas that many lawyers actually deal with in their routine practice. Most lawyers go their entire careers without ever handling a class action or ‘mass action’ case.
A ‘mass action’, simply means a large group of similar cases filed together in the same lawsuit. There are a lot of actions or lawsuits and since there are many we call it mass. So a “mass action” is just a large group of similar cases. Tort is an area of law distinct from contract-based law. So your typical car accident lawsuit would be considered a tort case. Sometimes you will hear “mass actions” described as “mass tort” cases. This simply means there is a ‘mass action’ or large group of lawsuits based on negligence or some non-contract or tort based claims.
In the Syngenta lawsuits there are thousands of lawsuits on behalf of corn farmers, which our firm has filed against Syngenta. These are lawsuits by an individual farmer, farm corporation, limited liability company, family trust, farm partnership, or other farming entity. In these cases, we file lawsuits on behalf of actual farmers and we are their lawyers. We represent these thousands of farmers. These clients own a lawsuit and as such they get to decide whether or not to settle. These cases would properly be characterized as a “mass action” or “mass tort action.” There are thousands of lawsuits with many of the same basic contentions about what Syngenta did wrong to harm farmers. The lawsuits largely allege non-contract claims like negligence or nuisance, which are tort claims.
By contrast, in the Syngenta cases in federal court in Kansas City, Kansas, there are approximately 22 class-action lawsuits. A typical class action case would involve one lawyer finding a single farmer in a state. The class lawyer finds a single person (or maybe a couple of people) and that person is known as a “class representative”, as they allegedly seek to represent the interests of all class members. In the Syngenta case a class might be “all farmers in the State of Georgia.” If you elected not to file an individual claim, where you have a lawyer and get to decide whether or not to settle, then you could become a class member. Some class actions require that you opt into them and sometimes you must opt out of them. If you were a Georgia farmer and wound up in the class, then the decisions would be made by a class-representative (that one farmer) and his lawyer, and not by you. Thus decisions about your case, including what amount to settle for, could be made by a class-representative you don’t know and an attorney you did not choose. In fact, it is commonplace that the first time a potential class member hears from “their” attorney or the attorney for the class, is when the case is over and has settled. Thus, the potential class member has no say in the outcome of the case and never has contact from an attorney until the case is over. By contrast in a ‘mass action’ or ‘mass tort case’, you have an attorney you hire and you have a case, and you get to decide whether to settle or not.
A case very similar to the Syngenta case, happened with rice and rice farmers. Bayer Crop Science allowed an unapproved GMO rice trait to get ‘out’ and contaminate the United States rice crop, and as a result our export partners banned American rice and the price fell. Sound familiar? It should, Syngenta allowed the same thing to happen with its GMO corn in 2013 and 2014, and corn prices crashed. Bayer was sued by 11,000 individual rice farmers in a ‘mass action.” Those cases settled for $750 million. By contrast, the class action suits recovered nothing, because the judge did not certify the class. Just because a single farmer and his lawyer file a class action suit, does not mean the court will allow the class to be formed. Thus, a farmer waiting for a class action runs the risk he might never recover anything, because a class action might get rejected by the court.
In Bayer Crop Sciences, the farmers who waited for a class action got nothing, and the average claim paid to members of the ‘mass actions’ where farmers had individual claims was about $70,000.
Another GMO class action case was Starlink. In Starlink, Aventis was sued over an unapproved corn GMO. In that case the class action was certified. The recovery was allegedly about $110 million. The class representative got a bonus and his lawyer was paid millions. The class members received gift cards. I recently met a farmer at a town hall meeting where I was talking about the Syngenta claims. The famer showed me his gift card and asked “is this gonna be one of those class-action cases where the lawyers make millions of dollars and the farmers get gift cards?” I proudly explained, that Watts Guerra was not doing class-actions for corn farmers but we were filing actual individual claims for corn farmers as part of a ‘mass action.’ The farmer was relieved and put the Starlink gift card back in his wallet. He is now a client and has a claim filed with our firm.
Written by:
Jon Givens
Watts Guerra LLP
4 Dominion Drive, Bldg. 3, Suite 100
San Antonio, Texas 78257
Phone (210) 447-0500
© Watts Guerra LLP 2015
