District Court Adopts 'Weak' Test Of Ascertainability, Certifies Class Of Corn Producers In Suit Against Syngenta Over Commercialization Of Genetically Modified Corn Seed Products

A District Court in Kansas added to an increasing debate in the federal courts over class ascertainability when it certified a class of 440,000 U.S. corn producers in a suit against Swiss global agribusiness Syngenta AG (Syngenta) over the company's commercialization of genetically modified corn seed products. In re: Syngenta Ag Mir 162 Corn Litig., No. 14-MD-2591-JWL, 2016 WL 5371856 (D. Kan. Sept. 26, 2016).

In the multi-district litigation, producers and nonproducers of corn in the U.S. brought claims against Syngenta and its affiliates under the Federal Lanham Act and various state laws in connection with Syngenta's commercialization of certain corn seed products. The products in question contained a genetic trait known as MIR 162 and were allegedly commingled throughout the U.S. corn supply. A major export market for corn is China, but Syngenta never obtained China's approval for MIR 162. China subsequently rejected MIR 162 corn for import, which caused a market oversupply that led to a dramatic drop in corn prices, thus allegedly causing significant losses to the plaintiffs' businesses.

Plaintiffs moved to certify a nationwide class and eight state law classes, comprising nearly half a million corn producers in the U.S. (for the nationwide class) or in a particular state (for the statewide classes) who "priced their corn for sale after November 18, 2013," excluding certain categories of producers such as those who purchased the seed product in question and those who had filed individual claims in state court.

Court holds that "ascertainability" does not require administrative feasibility

In its opinion, the court first took up the issue whether plaintiffs' proposed class definitions were properly "ascertainable." Noting the "critical importance" of a carefully crafted class definition, the court explained that the definition must be "precise, objective, and presently ascertainable." The Tenth Circuit, however, has not adopted a specific test for ascertainability and so the District Court sought guidance from other Circuits, which are split.

In the Seventh and Eighth Circuits, for example, ascertainability requires only that the proposed class be "readily identifiable," while the Second, Third and Eleventh Circuits adopt a stricter test that requires plaintiffs to show not only that the class can be defined by objective criteria, but also that class members may be determined in an economical and "administratively feasible" manner...