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DeLong Appeals Statute of Limitations in Modified Corn Suit Against Syngenta

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Late last week, The DeLong Co. appealed a Kansas District Court’s judgment in a trademark lawsuit it filed in 2017 against Syngenta AG to the Tenth Circuit. The lawsuit is part of a larger multi-district litigation matter; the court determined that DeLong Co.’s claims specifically were barred by the statute of limitations. 

The Kansas District Court issued its judgment in favor of the defendants, including Syngenta AG, Syngenta Crop Protection AG, Syngenta Corporation, Syngenta Crop Protection, Syngenta Biotechnology, and Syngenta Seeds, on February 3. The plaintiff’s notice of appeal explained that it was appealing this judgment along with any related orders or orders the judgment was passed on and cited other specific actions from the court. 

DeLong reportedly exports dried distillers grains with solubles (DDGS), which is a corn product.  In the initial complaint, the plaintiff alleged that Syngenta began selling corn seeds with a biotechnologically modified trait, Agrisure Viptera, before the product was approved in China. They claimed that Syngenta was aware that the corn could not be imported to China, but sold it anyway because it “knew that the clock was ticking on expiration of its patent for this genetic trait,” and did not want to lose monopoly profit provided by its patent. Syngenta reportedly expanded sales for the corn, causing some exports of corn products to China, including some DDGS shipments sent by the plaintiff, to be rejected by China in 2014. 

The district court’s Memorandum and Order explained that the plaintiff’s only remaining claim is negligence, specifically, that Syngenta was negligent in allowing its genetically modified corn product to enter the market before it was approved by China. Further, it specified that the statute of limitations is determined by Wisconsin law, the home state of DeLong, which is six years. According to the court’s ruling and Syngenta’s argument, the plaintiff knew that Syngenta had commercialized Viptera before October 2011, six years before the lawsuit was filed, and as the plaintiff had already “suffered harm by that date” than the statute of limitations had expired. The defendant cited that DeLong had taken steps to deal with the genetic trait in its supply in September 2011, including bringing corn products only through certain facilities. 

DeLong is represented by Gray Reed, Stueve Siegel Hanson, Gray Ritter & Graham, Hare Wynn Newell & Newton, and Nowlan & Mouat. Syngenta is represented by Kirkland & Ellis and Berkowitz Oliver

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