$400 Million Dicamba Drift Settlement:

Soybean Farmers Who Suffered Crop Damage Need to File Claims and Provide Proof of Crop Damage to Recover from Settlement Fund.

Breaking News:Bayer AG, formerly Monsanto Company, has agreed to settle dicamba drift litigation involving alleged damage to soybean crops from off-target movement of dicamba herbicides. The herbicides were alleged to volatize and drift to neighboring fields, harming vulnerable crops, including soybeans. Several class action lawsuits were filed in federal courts against Monsanto and BASF. These were consolidated into the In re Dicamba Herbicides Multi-District Litigation, No. 1:18-MD-2820-SNLJ (E.D. Mo.) (the “MDL”).

Bayer recently agreed to pay up to $400 million to resolve eligible soybean farmer’s crop damage claims for the 2015 through 2020 growing seasons.

While an Eligible Claimant does not need to prove which property the dicamba drifted from, or who applied it, Claimants will need to submit proof of over-the-top spraying of dicamba and soybean damage. Soybean farmers who do so may recover up to 100% of their claimed crop losses.

Soybean farmers must complete a claim form and provide evidence of their dicamba-related crop injury.

IMPORTANT: The period to enroll and submit a claim in the settlement is limited. To be compensated in exchange for a release of claims, you must file a claim form by the May 28, 2021 deadline. Late claims will not be accepted. 

We are proud to represent farmers and can help evaluate and process your claim. Zimmerman Reed partner Hart Robinovitch, who was appointed to the plaintiff’s Executive Committee to represent farmers and helped to negotiate the settlement, is encouraging eligible farmers to start the claims process immediately:

“The settlement establishes a significant monetary fund for soybean farmers who suffered financial loss from off-target movement of dicamba drifting to neighboring fields and injuring their crops. Affected farmers stand to receive up to 100% of their losses, if they can support their damage claims with evidence. The claims process can take time to gather documents that will be necessary to support a claim, so we encourage any soybean farmers wanting to participate to start the process sooner rather than later.”

How we can help

You do not need to hire a lawyer to participate in the settlement, but it may be helpful for you to consult with an attorney to make sure you maximize your recovery. If you would like to retain our law firm to assist you in processing and submitting your claim, please complete a short questionnaire below so we can evaluate your claim and get back to you.

If you would like more information or to talk to our team, please fill out our free case evaluation form or call us at 1.800.887.8029 to learn more.

Free Case Evaluation



Claims Process for Dicamba Settlement

The Settlement reached with Bayer/Monsanto requires Eligible Claimants to file a completed Claim Form and Claims Package by the May 28, 2021 deadline.

Generally, the Settlement requires a Claimant to support their claim with documents that fall within one of two categories. For each Affected Field for each Damage Year, the requirement will be satisfied by submitting one or more Category 1 documents or two or more Category 2 documents, as explained below.

Category 1 Documents. One or more of the following records are sufficient to establish dicamba symptomology for an Affected Field for a Damage Year:

(1) an Administrative Agency Record sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year;

(2) a report from an insurance adjuster or inspector sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year;

(3) a report or other similar contemporaneous writing from a cooperative extension agent or other University representative sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year;

(4) a report or other similar contemporaneous writing from a private agronomist or weed scientist sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year; or

(5) a report, statement, or admission of a present or former Monsanto or BASF employee who inspected the Affected Field indicating dicamba symptomology in the Affected Field in the Damage Year.

Category 2 Documents. Two or more of the following records are sufficient to establish dicamba symptomology for an Affected Field for a Damage Year:

(1) dated (where available) and authenticated photographs or videos sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year;

(2) a complaint filed with a Federal or State agency, including the USDA, sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year;

(3) a report or statement from a crop consultant or crop scout sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year;

(4) a declaration of an applicator who sprayed the dicamba over the top of dicamba-tolerant soybean or cotton plants that produced dicamba symptomology in the Affected Field in the Damage Year;

(5) a retained expert’s report sufficient to support a finding of dicamba symptomology in the Affected Field in the Damage Year;

(6) a declaration of the Claimant describing dicamba symptomology in the Affected Field in the Damage Year with a corroborating declaration from a disinterested third party either: (i) describing the dicamba symptomology in the Affected Field in the Damage Year; or (ii) otherwise confirming the symptomology or dicamba exposure in the Affected Field in the Damage Year, including by virtue of confirming that the Claimant made consistent, contemporaneous statements regarding the existence of dicamba symptomology in the Affected Field in the Damage Year;

(7) aerial or drone photography of sufficient quality to show dicamba symptomology in the Affected Field in the Damage Year;

(8) both: (i) any one Category 1 document or any two documents described above related to a Field other than the Affected Field for which dicamba symptomology is being established, but within the same Farm Number as the Affected Field for which dicamba symptomology is being established, from the same Damage Year; and (ii) a declaration from the Claimant that dicamba symptomology similar to that reflected in (i) existed on the Affected Field for which Dicamba Injury is being established in the Damage Year; or

(9) documents that the Claims Administrator deems to have a sufficient level of reliability to support a finding of dicamba symptomology in the Affected Field in the Damage Year, subject to certain restrictions set forth in the Settlement Agreement.

 

You do not need to hire a lawyer to participate in the settlement, but you may want to consult with attorneys to make sure you maximize your recovery. If you would like to retain our law firm to assist you in processing and submitting your Claim Form and Claims Package, please complete a short questionnaire. We will evaluate your potential claim and get back to you.

Free Claim Evaluation Form


The current settlement is limited to soybean farmers who suffered crop damage. Soybean farmers who elect not to participate in the settlement, as well as farmers who produce other types of crops, retain their rights to file their own claims. Those farmers, however, will have to establish Bayer/Monsanto’s liability on the merits as well as prove their individual damages to recover any damages.

History of Dicamba Drift Lawsuits

In 2016, soybean farmers—a crop particularly sensitive to dicamba—and others suffering crop damage filed suit against Monsanto (now Bayer) and BASF to recover financial losses sustained due to crop damage from off-target movement of dicamba herbicides.

University of Missouri Professor Kevin Bradley reported that, in 2017 alone, more than 3.6 million acres of soybeans were damaged across the country, as well as many acres of fruit and vegetable farms, vineyards, forests, and other plants. The drift has allegedly compromised critical wildlife habitat and crippled many farms.

In 2018, the related dicamba lawsuits were centralized into a multidistrict litigation (MDL) in the U.S. District Court for the Eastern District of Missouri in front of the honorable Judge Stephen N. Limbaugh, Jr. When multiple lawsuits are filed alleging similar damages stemming from the same conduct, it is common for the cases to be consolidated into an MDL to conserve resources and coordinate efforts, saving the parties time and money.

A copy of the operative Complaint can be viewed and downloaded here.

Zimmerman Reed partner Hart Robinovitch was appointed by the Court to serve on the Plaintiffs’ Executive Committee. That committee led the litigation against defendants Bayer/Monsanto and BASF.

After trial in early 2020, the Missouri federal court ordered Bayer and BASF to pay a multi-million-dollar jury verdict for the dicamba drift damage to peach orchard Bader Farms. Zimmerman Reed attorney Alyssa Leary was a member of the trial team that helped Bader Farms achieve this result.

Background – Dicamba Crop Damage Investigation

Variations of the weed killer dicamba were initially given regulatory approval by the Environmental Protection Agency based on a claimed lower volatility rate than prior technologies. Despite the new formula having reduced volatility, experts cannot unequivocally say the formula will prevent the spread of dicamba to neighboring crops. Moreover, while some farmers awaited the approval of newer formulas, the older, higher-volatility herbicide was nonetheless used to combat noxious weeds.

The illicit application of dicamba and the wide-spread damage to crops did not go unnoticed; by July 2017, National Public Radio reported that there were over 500 complaints filed by farmers residing in Arkansas alone. Many states have since taken an active role in regulating the chemical by limiting its application and use in agriculture.

On June 3, 2020, the U.S. Court of Appeals for the Ninth Circuit vacated the registrations of their dicamba herbicides, XtendiMax, Engenia, and FeXapan. The Court of Appeals concluded that the EPA had broken governing law when it re-registered the three herbicides in 2018. The panel ruled that the agency did not consider multiple risks to the environment and society from in-season dicamba use. Learn more here: https://www.dtnpf.com/agriculture/web/ag/crops/article/2020/06/04/ninth-circuit-vacates-three-dicamba

The Ninth Circuit concluded that the EPA “substantially understated” the amount of dicamba that would be sprayed, as well as the reality of injury reports across the Midwest and South:

“EPA refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage.”

The Court of Appeals also indicated that the EPA failed to consider how difficult the new label restrictions crafted in 2018 would be to follow, as well as the technology’s “anticompetitive effect” on the cotton and soybean market and its divisive nature among the agricultural community:

“[T]he EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the social fabric of farming communities.”

As a result, the Court vacated the EPA’s October 31, 2018, registration decision and the three registrations premised on that decision. While the EPA re-registered new labels for the dicamba products shortly thereafter, there is already a lawsuit pending that challenges the new registration and others are expected.

Learn more about the background of the dicamba litigation, click here.

How we can help

You do not need to hire a lawyer to participate in the settlement, but it may be helpful for you to consult with an attorney to make sure you maximize your recovery. If you would like to retain our law firm to assist you in processing and submitting your claim, please complete a short questionnaire below so we can evaluate your claim and get back to you.

If you would like more information or to talk to our team, please fill out our free case evaluation form or call us at 1.800.887.8029 to learn more.

Free Case Evaluation