Settlement Approved for Claims Involving Off-Target Soybean Damage for 2015 to 2020

Soybean harvest in Caroline County MD by Chesapeake Bay Program

In late 2020, the federal district court approved the settlement involving off-target dicamba damage to soybeans. The settlement will compensate soybean growers for yield losses from 2015 to 2020. As we will discuss, if you qualify, you need to file your claim before May 28, 2021.

Dicamba Off-Target Damage Class Action

Producers experiencing dicamba off-target damage brought the current In re Dicamba Herbicides Litigation against the manufacturers of the dicamba-based herbicides XtendiMax and Engenia in 2017. With the federal claims, the plaintiffs argue that Bayer and BASF Corporation violated § 1125(a) of the Lanham Act in marketing both XtendiMax and Engenia dicamba-based herbicides. The plaintiffs also allege that state claims focused on negligence claims in product design, failure to warn of negligence in the design, failure to warn of the dangers, and insufficient training of sales of representatives for the two dicamba-based herbicides.

Bayer announced a $400 million settlement with the plaintiffs in June 2020. The federal district court recently approved this settlement, which is for claims involving yield losses due to dicamba damage from 2015 to 2020. About $300 million of the settlement will cover specific losses to soybean growers during that period. Another $100 million of the settlement will go towards non-soybean damage and include the plaintiffs’ attorneys’ fees.

Soybean growers might be eligible for benefits under the settlement if they meet two requirements:

Planting soybeans by United Soybean Board

To file a claim, visit https://www.dicambasoybeansettlement.com/ to start the process. You will need to provide information related to damaged fields, including FSA Field number or GPS coordinates, total acres planted in soybeans, year(s) of injury, and if you already received money for the yield loss.

You will need to submit yield data for the affected fields and selected benchmark fields for damage years and for three non-damage years. To be a benchmark field for an affected field in a damage year, the field must :

By proposing a field as a benchmark field, you certify that it is an appropriate field to correspond to the affected field. You must provide a qualified reason for disregarding a benchmark field, which includes:

If you disqualify a field for qualifying reasons, you must provide the appropriate Form FSA 578 or insurance documents to support the explanation. If you disregard a field for a non-qualifying reason, you will be subject to an enhanced review process.

The purpose of the enhanced review process is to determine, based on available records, the best estimate of the field yield loss for any eligible field subject to the Enhanced Review Process if such an estimate can be determined from a reasonably reliable methodology; or if there is no such methodology, to estimate any yield loss from dicamba off-target damage for an eligible field in a fair process.

With the settlement process, you must provide some documents: either one or more Category 1 documents, or two or more Category 2 documents — more on those in a minute. You must also provide any administrative agency reports from complaints filed or investigated by a governmental agency regarding alleged off-target dicamba damage, along with any FSA-578 forms and Farm Service Agency and Risk Management Agency releases.

Sprayer in field by United Soybean Board

To demonstrate the off-target injury, you must present one or more Category 1 documents or two or more Category 2 documents. Category 1 documents include:

Category 2 documents include:

If you have more questions on the settlement process, see the FAQs associated with the process (https://www.dicambasoybeansettlement.com/Home/Faq ).

Those who experienced off-target dicamba damage on soybeans in the 2015 to 2020 crop years have until May 28, 2021, to submit a claim. This settlement is slightly more complicated than earlier settlements. Consider reviewing https://www.dicambasoybeansettlement.com/ to ensure you understand the records you need to pull together before submitting a claim.

Originally published at https://www.agrisk.umd.edu on February 11, 2021.

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Extension Legal Specialist @UofMaryland posts do not represent my employer & retweets ≠ endorsements

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Paul Goeringer

Extension Legal Specialist @UofMaryland posts do not represent my employer & retweets ≠ endorsements