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Case 6:17-Cv-01210 Document 1 Filed 08/18/17 Page 1 of 69 Case 6:17-cv-01210 Document 1 Filed 08/18/17 Page 1 of 69 IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS JED R. CLAASSEN, Individually and as PLAINTIFFS Representative of CLAASSEN FARMS; CLAASSEN FARMS vs. Civil Case No. __________________ MONSANTO COMPANY; DEFENDANTS BASF SE; BASF CORPORATION BASF PLANT SCIENCE LP; and JOHN DOE COMPANIES A - Z COMPLAINT – CLASS ACTION COMES NOW Plaintiffs, Jed R. Claassen and Claassen Farms on behalf of themselves, all others similarly situated, and the class they seek to represent for their Class Action Complaint against the named Defendants herein, state as follows: I. INTRODUCTION AND SUMMARY OF THE CLAIMS 1. Plaintiffs bring this class action lawsuit for damages against Defendants, Monsanto and BASF, who jointly collaborated to develop and release a defective and unreasonably dangerous “dicamba-tolerant crop system,” which has directly resulted in massive harm to crops in Kansas, Arkansas, Missouri, Tennessee, Mississippi, and other states. 2. These damages include, but are not limited to, crop damage, yield loss, total failure of the crop, and financial ruin to impacted farmers. 3. The BASF/Monsanto dicamba-tolerant crop system cannot be safely used for its intended purpose regardless the degree of care without causing collateral damage to nearby crops, which are not part of the BASF/Monsanto dicamba-tolerant crop system. Page 1 of 69 Case 6:17-cv-01210 Document 1 Filed 08/18/17 Page 2 of 69 4. Dicamba is a synthetic herbicide, which farmers have been using for decades to burn down fields in an effort to control weeds. Due to the volatile nature of dicamba, farmers could only use dicamba during certain times of the year. 5. Despite knowledge of the dangers dicamba posed, Monsanto and BASF jointly collaborated, designed, formulated, developed, tested, manufactured, marketed, promoted, advertised, released, and created a dicamba-tolerant crop system designed to combine Monsanto’s dicamba-resistant seeds (hereinafter “dicamba seed”) with BASF’s dicamba-based herbicide (hereinafter “Engenia®” or “Engenia”). This dicamba crop system is for an in-crop, over-the-top use, which is when a crop is emerging from the ground, for the first time ever to Kansas farmers and farmers across the country at additional times during the crop growing season where it was previously restricted. 6. Defendants have intricate knowledge of the agricultural process, including crops and herbicides. With this superior knowledge of the agricultural production process and market domination, Defendants implemented, developed, and released their defective dicamba crop system on Kansas farmers. 7. Monsanto identifies the dicamba-seed and dicamba-herbicides as a “crop system,” meaning the dicamba-based herbicide, Engenia, and dicamba-seeds are specifically designed for use in conjunction with one another. Monsanto’s website identifies dicamba-resistant seeds and the dicamba-based herbicides as a “crop system,” also meaning the products should be used in conjunction with one another. 8. This dicamba-tolerant crop system is inherently and unreasonably dangerous to nearby crops owned by farmers who did not purchase the dicamba seed. Page 2 of 69 Case 6:17-cv-01210 Document 1 Filed 08/18/17 Page 3 of 69 9. Defendants have long had knowledge and understanding of the physical characteristics, formulations, and properties of dicamba. Defendants created a “new formulation” of dicamba herbicide, which causes damage to neighboring crops because of its volatility, i.e., from vapor particles lifting into the atmosphere and moving away from the intended target. This off-target movement includes climatic inversions where vapor particles volatilize and become suspended in air and move to a non-dicamba-resistant crop area. Further, dicamba can move by wind drift, water run-off, and by particles attaching to dust and moving to a non-dicamba-resistant crop area. Thus, killing or damaging sensitive (non-dicamba-tolerant) crops. 10. Defendants also knew the damaging nature and inherent danger of their genetically modified dicamba seed and dicamba herbicide, when joined together, formed a defective and unreasonably dangerous dicamba-tolerant crop system. 11. At all relevant times, Defendants aggressively represented, marketed, advertised and promoted its “new” dicamba-resistant crop system as safe, including, “safety to nearby crops.” BASF and Monsanto, in a joint press release, stated, “Both parties will participate in the development of innovative formulations for dicamba for use with herbicide-resistant cropping systems…Improved formulations are being developed to complement this new combination of herbicide-resistant crops.” Despite Defendants’ representations, marketing, advertising and promotion to the contrary, Defendants’ dicamba-tolerant crop system has caused massive crop damage to farmers, including Plaintiffs. 12. Defendants knew soybeans are highly sensitive to extremely low doses of dicamba. Dicamba had been available for 50 years for corn, small grain, and pastures. However, dicamba was not applied to soybeans over-the-top. Thus, Defendants new formulation was a whole new Page 3 of 69 Case 6:17-cv-01210 Document 1 Filed 08/18/17 Page 4 of 69 introduction, not only in mass, but to a crop that is highly sensitive to dicamba. Therefore, nearby crops, were imminently at risk when the dicamba-tolerant crop system was introduced. 13. Plaintiffs bring this nationwide class action on behalf of farmers whose crops have been materially and significantly damaged by Defendants’ negligent control, testing, training, development, marketing, promotion, advertising, and distribution of the dicamba crop system, which proximately caused significant and material injury and damage to Plaintiffs’ crops in 2016 and 2017. 14. Because of Defendants’ willful conduct, Plaintiffs’ crops are not resistant to dicamba and have been devastated by dicamba damage due to the spraying of volatile, drift-prone dicamba over dicamba-tolerant products. Accordingly, Plaintiffs bring their lawsuit under state law claims of (1) strict products liability; (2) negligence; (3) breach of implied warranty of fitness for a particular purpose; 4) breach of implied warranty of merchantability; (5) Kansas Consumer Protections Act; (6) fraudulent concealment; (7) express warranties by affirmation, promise, description, or sample; (8) fraud; (9) unjust enrichment; (10) civil conspiracy; (11) private nuisance; and (12) trespass to chattels. 15. Plaintiffs seek relief in the form of compensatory damages, punitive damages, and attorneys’ fees and other costs of litigation. II. JURISDICTION AND VENUE 16. This Court has jurisdiction over the subject matter of this lawsuit pursuant to U.S.C. § 1332(d) because there is complete diversity of parties. Plaintiffs individually also seek more than $75,000 for damages, punitive damages and also injunctive relief. 17. Additionally, this Court has jurisdiction over this case under 28 U.S.C. § 1332(d)(2)(A) and (C). This case is a class action, as defined by 28. U.S.C. § 1332(d)(1)(B), and Page 4 of 69 Case 6:17-cv-01210 Document 1 Filed 08/18/17 Page 5 of 69 the amount in controversy exceeds $5,000,000, exclusive of interest and costs. Plaintiffs, individually, and those similarly situated, as more particularly set forth below, include citizens of Kansas. 18. Plaintiffs are residents and citizens of Kansas who have property affected by Defendants’ conduct and represent similarly situated injured persons and entities from various state injured by Defendants uniform corporate conduct and partnership in the release of an inherently dangerous and volatile crop-system on the market, which has directly impacted and severely damaged Plaintiffs’ livelihood of growing crops. 19. At all relevant times herein, Defendants have jointly researched, designed, formulated, compounded, developed, tested, manufactured, produced, processed, assembled, inspected, distributed, marketed, promoted, packaged, advertised and made representations regarding dicamba-resistant crops and dicamba herbicide. 20. This Court has both specific and general personal jurisdiction over the parties. Defendants have engaged in such continuous, systematic and continually conduct business in the State of Kansas that the Defendants are “at home” in the State of Kansas. Defendants actively engaged in the promotion and use of their inherently dangerous and volatile crop-system in Kansas, Arkansas, Missouri, Mississippi and other states, have distributed dicamba herbicide applicators and have performed training, education and information schools in Kansas, Arkansas, Missouri and Mississippi and other states. Defendants have performed GMO crop and dicamba-resistant crops and dicamba herbicide testing on test plots in the State of Kansas, avail themselves of the opportunity to conduct business in this State, sell crop products, make representations, market, advertise, promote and distribute their crop products in this State and have committed tortious acts in the State of Kansas. Page 5 of 69 Case 6:17-cv-01210 Document 1 Filed 08/18/17 Page 6 of 69 21. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because (1) Plaintiffs reside in this District; (2) Defendants have engaged in substantial conduct and business relevant to Plaintiffs’ claims within this District; and (3) Plaintiffs have suffered substantial losses from dicamba herbicides due to Defendants’ wrongful conduct within this District. III. PARTIES 22. Plaintiff Jed R. Claassen, Individually and as a
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