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Minnesota high court approves $56 million to U.S. farmers in fraud suit

(Sunday, Feb. 22, 2004 -- CropChoice news) -- From a news release (Please see related commentary following.): MINNEAPOLIS, Feb. 19 /PRNewswire/ -- The Minnesota Supreme Court today approved a Norman County (MN) jury award and judgment of $56 million against New Jersey-based BASF Corp. for defrauding United States' farmers in the sale of a herbicide in a national class action suit.

After a five week trial that concluded on Dec. 6, 2001 a jury unanimously found that BASF committed consumer fraud in the sale of Poast herbicide sold in all 50 states from 1992-96.

In a March 11, 2003 ruling the Minnesota Court of Appeals -- an intermediate appellate court -- also upheld the jury verdict and judgment for farmers.

"It is great to be wearing a white hat in a case like this," said Minneapolis attorney Douglas Nill ( www.farmlaw.com ) who, with attorney Hugh Plunkett represents the farmers. "For seven years this world's largest chemical company has pounded us with a blizzard of paper. It is a tremendous victory for consumers."

Trial evidence established that BASF defrauded thousands of farmers by marketing the same herbicide as different products -- Poast and Poast Plus -- at different prices as a "system of deceit" to extract inflated prices for the same herbicide from minor crop farmers.

"BASF concealed from farmers and state regulatory authorities that the cheaper Poast Plus, sold to soybean growers, a 'major' national crop, was approved by the EPA for use on the same crops as the more expensive Poast sold to growers of 'minor' crops such as sunflowers, sugarbeets, potatoes, vegetables and fruits," said Nill.

"BASF's marketing misconduct was horrid," said Nill. "The jury heard evidence that BASF lied to state regulatory authorities, food processors, farmers and others to conceal a federal regulatory action, namely, the EPA registration of Poast Plus for the same crops as Poast, using the same safety data. BASF threatened, encouraged and allowed the criminal prosecutions of farmers for 'off-label' use of cheaper Poast Plus as a marketing 'strategy'. BASF considered the 'risk' of farmers discovering the truth, and whether United States farmers could be 'controlled in future' if BASF's fraudulent marketing and pricing schemes for Poast and Poast Plus were discovered."

BASF's appeal of the jury verdict attracted national attention from business stalwarts. Submitting "friend of the court" briefs to the Minnesota Supreme Court on behalf of BASF were U.S. Chamber of Commerce, National Association of Independent Insurers, American Tort Reform Association, CropLife America, National Association of Manufacturers and American Chemistry Council, Product Liability Advisory Council, and Washington Legal Foundation.

The State of Minnesota, through Attorney General Mike Hatch, American Sugarbeet Growers' Association, Minnesota Farmers Union, and Minnesota Trial Lawyers Association, joined the appellate fray with "friend of the court" briefs on behalf of farmers.

"The chemical corporations are anxious," said Nill. "BASF admitted during trial that the entire industry has engaged in these marketing games. The entire industry has engaged in a charade of selling the same product as different products for different uses, while exploiting regulations intended to protect the safety of people and the environment, to extract higher prices from segments of the consumer market."

BASF threatens to continue its appeal of the jury verdict to the U.S. Supreme Court. "BASF repetitively argues frivolous defenses rejected by Minnesota and all appellate courts," said Nill. "BASF will continue its paper blizzard strategy to hold its ill-gotten money and delay payment to injured farmers."

Nill says the 11 Minnesota, Montana and North Dakota farmers who represent the Class will do a pro rata distribution of the jury's "common fund" damage award to injured farmers across the United States who can be located and submit claims.

"A pro rata distribution of the 'common fund' to injured class members after a jury verdict and judgment is required by law," said Nill. A pro rata distribution means that the entire damage award, after payment of attorney fees and costs, will be distributed to the class members who make claims. "An identifying characteristic of a common and undivided interest is that if one plaintiff cannot or does not collect his share, the shares of the remaining plaintiffs are increased," said Nill. "If only 25 percent of farmers who are class members can be located and make claims, those 25 percent of the farmers share 100 percent of the 'common fund' available for distribution."

"Farmers who make claims are going to be getting cold, hard cash," said Nill.

Farmers who purchased Poast from 1992-96 should locate invoices or other proof of purchase and contact Nill at dnill@farmlaw.com . "A notice for a claim distribution process will be published nationwide in farm magazines and mailed to claimants we can identify," said Nill.

CONTACT: Douglas J. Nill, P.A. of Douglas J. Nill, P.A., www.farmlaw.com , +1-612-573-3669, or toll free, +1-866-573-3669, or cell, +1-612-718-1018, dnill@farmlaw.com

Related 2003 commentary: 'BASF defrauds farmers with market segmentation'... http://www.cropchoice.com/leadstry.asp?recid=1126