January 25, 2021
Monsanto, now owned by Bayer, and BASF negotiated and reached an agreement whereby both companies will contribute towards the costs of a $400 million settlement that deals with a multidistrict lawsuit of dicamba damage claims. Farmers now have until May 28, 2021 to file claims to receive financial compensation for documented yield losses.
Tad Nowlin plans to file his claim as part of the negotiated dicamba settlement, one of several thousands of farmers who filed reports or saw damage from 2015 to 2020.
Nowlin operated 2,300 acres of soybeans, corn and wheat in southeastern Missouri and northeastern Arkansas, with normally half of his acres planted to soybeans. As a certified applicator Nowlin knew dicamba was volatile, and in 2017 he decided to not plant dicamba-resistant soybeans. But after two years of devastating yield and resulting financial losses as his neighbors applied dicamba around him, he made the tough decision to leave farming.
“I knew the susceptibility of soybeans to dicamba with even a minute amount of it and hazards of it, so I refused to spray it,” Nowlin says. “That decision cost me hundreds of thousands of dollars.”
He first started seeing damage in his fields in 2017. His soybeans at 4-5” didn’t grow for 60 days while his neighbors’ dicamba-resistant soybeans flourished. His average yields dropped to 30-40 bushels range in those years, compared to his normal yields of 60-70 bushels.
He says, 100%, without a single doubt in his mind he would be farming today if it wasn’t for those dicamba losses. “The settlement is a blessing, but the mental emotional, and physical devastation caused by dicamba can never be undone. Farmers know sometimes things are out of your control; and dicamba was out of my control.”
Under the settlement, affected farmers may receive up to 100% of their yield losses caused by off-target dicamba. That means impacted farmers can potentially recover 100 cents on the dollar of the losses that they can establish with standard farming records.
Rene Rocha, attorney at Morgan and Morgan party to the negotiating settlement, says the final settlement allows an objective verification of yield losses.
The initial step is to determine eligibility by demonstrating dicamba damage with specified records proving crop injury on the farm likely occurred from over-the-top spraying of the herbicide.
The first category is a report from the state plant board, department of agriculture, agronomists or university officials that establishes dicamba symptomology. “If there’s no indication of some other cause, you’ll be automatically eligible,” Rocha says.
Otherwise, farmers can file any two types of other proof including dated and authenticated photographs or videos, a complaint filed with a federal or state agency, a report or statement from a crop consultant or crop scout to support dicamba damage, aerial or drone photography, or a retained expert’s report.
Once the eligibility is established, Rocha says an objective comparison of yields provides the foundation for the yield loss calculation. Field yield loss will be calculated in bushels per acre for each eligible field by choosing a benchmark field from a Farm Service Agency farm number to compare yields from three years of yield comparisons before or after the injury year. Rocha says farmers may use as many as 10 years if desired to prove yield losses.
For example, if a field normally yields 5 bushels higher than the benchmark field, but in the damage year saw a difference of 20 bushels, that would verify a 15 bushel yield difference.
Rocha adds that some folks who will not be able to do a benchmark field may have some additional options, including using the county average.
In a statement, Bayer says, “The claims filing period is one planned step in the implementation of the previously announced settlement agreement for which the terms have not changed. Bayer stands fully behind our Roundup Ready Xtend Crop System, including the seeds, traits and XtendiMax herbicide. Significantly, the settlement does not contain any admission of liability for the crop damage alleged in this litigation.”
BASF says it is not a party to the agreement but is pleased that the settlement resolves the multidistrict litigation against BASF as well. "Monsanto will be responsible for managing the administration of the MDL settlement claims with eligible claimants," BASF states.
Bayer, which purchased Monsanto after the litigation started against Monsanto, adds, “We are settling the dicamba drift cases to be able to focus on the needs of our customers and avoid the costs and distractions of continued litigation.”
Rocha says he’s confident the $400 million pool will be sufficient to resolve all of the claims. However, there is a relief provision if more claims are made, farmers can walk away from the settlement if the total amount of claims is diminished.
Farmers can complete the claim process on their own; hire an attorney of their choice; or retain one of the Plaintiffs’ Executive Committee firms to assist with putting together the claim form and supporting documentation. Rocha says farmers don’t have to have a lawyer, but it may help maximize recovery.
He encouraged farmers to take action immediately, especially before springtime busyness. He anticipates based on the objectivity of the claims' settlement, farmers could receive checks and recovery by the end of 2021.
Impacted soybean farmers can submit claims at dicambasoybeansettlement.com or call 855-914-4672. The claims period began on December 29, 2020 and runs through May 28, 2021.
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