Case 2:20-cv-00081-BSM Document 1 Filed 04/10/20 Page 1 of 96
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF ARKANSAS
`DELTA DIVISION
`
`DONNIE B. MITCHELL, Individually and as Representative of
`D.B. MITCHELL FARMS, LLC;
`D.B. MITCHELL FARMS, LLC
`
`APR 1 0 2020
`
`JAMES W. McCORMACK, CLERK
`
`By: P~BFs oc:P CLERK
`
`vs.
`
`MONSANTO COMPANY;
`BASF SE; and
`BASF CORPORATION
`
`Civil Case No. Z: Z. 0 .-C. V- gJ - BS,N\
`
`DEFENDANTS
`
`COMPLAINT
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`COMES NOW Plaintiffs, Donnie B. Mitchell, Individually and as Representative of D.B.
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`Mitchell Farms, LLC; and D.B. Mitchell Farms, LLC, and for their first Complaint against the
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`named Defendants herein, state as follows:
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`NATURE OF THE ACTION
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`This action is brought by farmers who have suffered damage as a result of the design,
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`development, promotion, and sale of a genetically engineered trait conferring resistance to
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`dicamba expressly for the purpose of spraying dicamba herbicide over the top of growing plants
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`as part of a dicamba-based crop system. Defendants knew that dicamba, highly volatile and prone
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`to drift, is ruinous to susceptible non-dicamba resistant plants and crops. Not only did Defendants
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`release their dangerous system onto the market, creating high risk of harm, but everything they did
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`and failed to do increased that risk, all but ensuring damage to non-dicamba resistant plants and
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`crops. That damage in fact served Defendants' purpose of pressuring farmers to purchase
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`dicamba-resistant seed out of self-protection. Defendants created and carried out a scheme of
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`ecological disaster for their financial gain and to the detriment of the very persons they knew would
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`be harmed.
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`This case assigned to District Judge M, I lee::
`and to Magistrate Judge _H .... A .... C ..... f..:..::\5"-------
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`Case 2:20-cv-00081-BSM Document 1 Filed 04/10/20 Page 2 of 96
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`Plaintiffs
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`PARTIES
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`1.
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`Donnie B. Mitchell is a citizen of Mississippi who farms in Lee County, AR, and
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`Tunica, MS. In 2017, Mr. Mitchell grew non-dicamba resistant cotton and soybeans in Arkansas
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`and Mississippi damaged by dicamba. Mr. Mitchell lived in Lee County, Arkansas at the time of
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`the loss in 2017.
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`2.
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`D.B. Mitchell Farms, LLC is a limited liability company formed in Arkansas who
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`farms in Lee County, AR, and Tunica, MS. In 2017, D.B. Mitchell Farms, LLC grew non-dicamba
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`resistant cotton and soybeans in Arkansas damaged by dicamba.
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`Defendants
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`3.
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`Monsanto Company ("Monsanto") is a corporation organized and existing under
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`the laws of the State of Delaware with its corporate headquarters and principal place of business
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`in St. Louis County, Missouri.
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`4.
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`Monsanto designs, develops, manufactures, licenses, and sells biotechnology,
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`chemicals, and other agricultural products, including herbicides and seed genetically modified to
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`produce crops resistant thereto. These include Roundup Ready 2 Xtend Soybean ("Xtend
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`soybeans"), Bollgard II XtendFlex Cotton ("Xtend cotton") and a herbicide known as XtendiMax
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`with VaporGrip Technology® ("XtendiMax").
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`5.
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`Along with BASF SE and BASF Corporation, Monsanto developed, and also
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`licenses and sells a genetically engineered trait in soybean and cotton seed, and seed containing
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`that trait, for intended use with dicamba herbicide, marketed and sold in states including those
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`alleged in this action.
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`6.
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`BASF SE is a corporation organized and existing under the laws of Germany with
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`its overall headquarters in Ludwigshafen, Germany. BASF SE describes itself as the largest
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`chemical company in the world. In materials describing the company, BASF SE lists one of its
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`"Country Headquarters" as BASF Corporation, 100 Park Avenue, Florham Park, NJ.
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`7.
`
`BASF Corporation is a company organized and existing under the laws of the State
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`of Delaware, with corporate headquarters at 100 Park Avenue, Florham Park, New Jersey and/or
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`research headquarters at 26 Davis Drive, Research Triangle Park, NC. BASF Corporation is the
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`largest affiliate of BASF SE and the second largest producer and marketer of chemicals and related
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`products in North America. It is a subsidiary and North American agent for BASF SE.
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`8.
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`BASF Corporation is the entity whose name and address appears on labels of the
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`the dicamba herbicide known as Engenia. Dr. Jeffrey Birk (BASF, 26 Davis Drive Research
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`Triangle Park, NC), is listed as "registrant" on the EPA Notice of Pesticide Registration for
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`Engenia (EPA Reg. No. 7969-345) dated December 20, 2016. On information and belief, Dr.
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`Jeffrey Birk is a Regulatory Manager at BASF Corporation.
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`9.
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`Chemical manufacturers and importers are required to develop a Safety Data Sheet
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`for each hazardous chemical they produce. See 29 CFR 1910.1200(g). A Safety Data Sheet for
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`Engenia dated January 16, 2017 identifies BASF SE (67056 Ludwigshafen, Germany), as the
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`supplier of the safety data, with a "Contact address" of BASF Corporation, 100 Park A venue,
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`Florham Park, NJ 07932.
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`10.
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`BASF SE is a global company that extensively integrates operational, managerial,
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`and financial resources across entity lines. BASF SE and its group of entities operate by business
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`segments or "divisions." Employees have reporting relationships and carry on activities defined
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`not by corporate relationships but by such business or operational segments. "Agricultural
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`Solutions" and/or "Crop Protection" is a business segment within and supported by this integrated
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`organization. For example, entities within the BASF organization share operational systems and
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`services including finance, legal, taxes, intellectual property, investor relations, communications
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`and government relations, human resources, engineering and site management, environmental
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`protection, and health and safety. BASF Website, "Organization of the BASF Group,"
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`https://www.basf.com/en/company/about-us/strategy-and-organization/ structure.html.
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`11.
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`"Within BASF Group, BASF SE takes a central position: Directly or indirectly, it
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`holds the shares in the companies belonging to the BASF Group, and is also the largest operating
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`company." BASF SE Webpage, "About Us," https://www.basf.com/de/en/company/about(cid:173)
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`us/strategy-and-organization.html. The BASF SE Board of Executive Directors is responsible for
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`overall management of the company, and BASF SE exercises authority and control over BASF
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`Corporation and its operations. BASF SE and BASF Corporation share one or more officers and/or
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`directors. On information and belief, at least two of the three current BASF Corporation directors
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`are current or former director of BASF SE. BASF Corporation does not function independently
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`but under the BASF umbrella where the BASF group operates a unitary business.
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`12.
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`BASF SE coordinates crop protection activities from the BASF Agricultural Center
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`in Limburgerhof, Germany. See BASF Brochure (BASF SE/Global Communications Crop
`
`Protection,
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`2016),
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`https://industries.basf.com/assets/global/corp/en/Agriculture/Crop%20
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`Protection/Brochure%20Crop%20Protection%20Englisch.pdf.
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`13.
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`BASF SE and BASF Corporation regularly refer to themselves as "BASF" with no
`
`further description, and unless otherwise indicated, are herein referred to collectively as "BASF".
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`14.
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`As more fully described herein, Monsanto and BASF have since at least 2007
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`entered into one or more agreements in order to, and did, engage in a partnership, joint venture,
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`joint enterprise, or similar relationship to develop technologies for a dicamba-based crop system,
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`respecting which they jointly fund projects and share risks and profits. They jointly developed the
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`dicamba-resistant trait, as well as dicamba formulations for application over the top of crops grown
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`from that trait, entered into reciprocal licensing arrangements, engaged in joint field testing,jointly
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`developed stewardship guidelines, and otherwise acted at all relevant times together in designing,
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`developing, marketing, manufacturing, licensing and sale of the dicamba-based crop system. On
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`information and belief, a substantial portion of these activities occurred in this district.
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`15.
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`Among other things, BASF provided Monsanto with the dicamba formulation that
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`became XtendiMax. BASF markets and sells its own dicamba herbicide Engenia specifically for
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`use with seed containing the dicamba-resistant trait.
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`16.
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`At all relevant times, Monsanto and BASF acted together and in concert as joint-
`
`venturers, joint enterprises, partners and co-conspirators who shared financial risks and benefits,
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`proprietary dicamba formulations and bioengineered crop traits, collaborated in and jointly
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`conducted field testing, marketing, promotion, training, and other shared activities all with the
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`common interest and purpose of creating ever more demand for seed with the dicamba-resistant
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`trait and further use of dicamba, each acting in its own right and as agent for the other.
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`JURISDICTION AND VENUE
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`17.
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`This Court has jurisdiction over the subject matter of this lawsuit pursuantto U.S. C.
`
`§ 1332( d) because there is complete diversity of parties. Plaintiffs individually also seek more
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`than $75,000 for damages, punitive damages and also injunctive relief.
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`18.
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`Plaintiffs are residents and citizens of Arkansas and Mississippi who have property
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`affected by Defendants' conduct and represent similarly situated injured persons and entities from
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`various state injured by Defendants uniform corporate conduct and partnership in the release of an
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`inherently dangerous and volatile crop-system on the market, which has directly impacted and
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`severely damaged Plaintiffs' livelihood of growing crops.
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`19.
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`At all relevant times herein, Defendants have jointly researched, designed,
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`formulated, compounded, developed, tested, manufactured, produced, processed, assembled,
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`inspected, distributed, marketed, promoted, packaged, advertised and made representations
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`regarding dicamba-resistant crops and dicamba herbicide.
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`20.
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`This Court has both specific and general personal jurisdiction over the parties.
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`Defendants have engaged in such continuous, systematic and continually conduct business in the
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`State of Arkansas that the Defendants are "at home" in the State of Arkansas. Defendants actively
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`engaged in the promotion and use of their inherently dangerous and volatile crop-system in
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`Arkansas, Missouri, Mississippi and other states, have distributed dicamba herbicide applicators
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`and have performed training, education and information schools in Arkansas, Missouri and
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`Mississippi and other states. Defendants have performed GMO crop and dicamba-resistant crops
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`and dicamba herbicide testing on test plots in the State of Arkansas, avail themselves of the
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`opportunity to conduct business in this State, sell crop products, make representations, market,
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`advertise, promote and distribute their crop products in this State and have committed tortious acts
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`in the State of Arkansas.
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`21.
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`BASF SE wholly owns and exercises substantial and pervasive control over BASF
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`Corporation, with and through which it carries out integrated and symbiotic operations including
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`those relating to crop protection. BASF SE induced, directed, caused, and participated in the
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`activities at issue. BASF Corporation is BASF's agent through which business in North America,
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`including Iowa, is conducted. Jurisdictional contacts of BASF Corporation are attributable to
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`BASF SE.
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`22.
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`In addition, and on information and belief, BASF SE and BASF Corporation each
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`has participated directly in the events alleged herein pertaining to the design, development, release,
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`promotion, marketing, and sale of the dicamba-based crop system.
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`23.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because (1)
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`Plaintiffs reside in this District; (2) Defendants have engaged in substantial conduct and business
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`relevant to Plaintiffs' claims within this District; and (3) Plaintiffs have suffered substantial losses
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`from dicamba herbicides due to Defendants' wrongful conduct within this District.
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`24.
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`Defendants have and continue, at minimum, to advertise, market, sell, or otherwise
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`disseminate, the dicamba-resistant trait and seed containing it, dicamba herbicides, and the
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`dicamba-based crop system in this district.
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`FACTUAL BACKGROUND AND GENERAL ALLEGATIONS
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`A. Monsanto, Glyphosate, and Super Weeds
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`25. Monsanto was one of the first companies to utilize biotechnology in the field of
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`agriculture and has become a leading producer of genetically modified seed and agro-chemicals.
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`26.
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`Biotechnology has made possible the introduction of genetic characteristics, or
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`traits, into plant seeds.
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`27.
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`In the 1970s, Monsanto patented the glyphosate molecule, which became the active
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`ingredient in Roundup herbicide.
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`28.
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`Glyphosate is a non-selective herbicide that causes severe injury or destruction to
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`plants, including soybean and cotton, that have not been genetically modified to tolerate it.
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`29.
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`Introduced in 1974, Roundup became one of the world's most widely used
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`herbicides.
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`30. Monsanto also genetically engineered seed to withstand its glyphosate herbicide,
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`sold under the brand name Roundup Ready ("RR").
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`31. Monsanto's development and sale of the glyphosate-tolerant trait changed how
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`farmers could apply glyphosate herbicide. Rather than being applied before the crop is planted (in
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`"burndown" stage), Roundup can be sprayed over the top of growing crops genetically modified
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`to withstand it. As a result, farmers planting glyphosate-tolerant crops can apply it over an entire
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`field after the crop has emerged without damage to the crop itself. Over-the-top application of
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`glyphosate is now commonplace.
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`32. Monsanto began selling RR soybean seed in 1996 and RR com seed in 1998. Other
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`crops genetically altered to withstand Roundup herbicide include canola, cotton, alfalfa, and sugar
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`beets.
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`33.
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`The Roundup Ready crop system became Monsanto's flagship. Monsanto's
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`Roundup herbicide and RR seed each supported the other, becoming a blockbuster combination.
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`34.
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`The glyphosate-resistant trait is a technology that Monsanto patented, owns and
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`licenses. A farmer cannot obtain that technology without buying the seed into which it has been
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`inserted.
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`35.
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`Until 2015, Monsanto held the patent on its "first generation" Roundup Ready
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`("RRl ") trait.
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`36. Well before Monsanto's patent on its original RR technology expired in 2015,
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`Monsanto patented a "second generation" Roundup Ready ("RR2") trait, which expresses the same
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`enzyme that confers glyphosate resistance as before.
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`37. Monsanto charges more for its RR2Yield soybean seed than its original RRl
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`soybean seed, marketing it as having better yield, which it does not as compared to RRl and/or
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`other varieties.
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`38. More than 90% of soybeans and approximately 80% of com and cotton are grown
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`from seed containing Monsanto's RR trait.
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`As of 2016, glyphosate had become the most-used agricultural chemical ever.
`39.
`40. Weeds, however, have evolved to become naturally resistant to glyphosate. These
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`are known as "super weeds."
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`41. Monsanto's sale and distribution of the RR trait and Roundup herbicide set in
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`motion a dangerous cycle whereby weeds evolve to resist the chemicals designed to destroy them,
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`forcing farmers to apply higher doses or use different herbicides.
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`42. Monsanto's RR trait and Roundup herbicide directly contributed to this problem.
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`All the while, Monsanto made massive profits.
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`B.
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`Development of the Dicamba-based Crop System
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`43.
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`Recognizing the opportunity to protect and enhance its dominance with RR, and to
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`capitalize on and dominate the market with a new trait to address the weed problem Monsanto's
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`own Roundup products produced, Monsanto, along with BASF, set out to develop a crop system
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`featuring dicamba, an exceptionally volatile and damaging herbicide.
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`44.
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`According to Monsanto President, Brett Begemann, this new crop system provides
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`Monsanto "a source of growth longer term." Carey Gillam, Monsanto to invest more than $1 bin
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`in dicamba herbicide production (June 24, 2015), https://www.reuters.com/article/monsanto(cid:173)
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`dicamba/monsanto-to-invest-more-than-l-bln-in-dicamba-herbicide-production-
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`idUSL 1 NOZA 1XN20150624.
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`45.
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`Originally invented by BASF, dicamba is a broad-spectrum systemic herbicide that
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`destroys broadleaf weeds and plants.
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`46.
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`Dicamba mimics the plant hormone auxin, causing uncontrolled cell division and
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`growth, causing the plant to grow so fast that it cannot retain the nutrients it requires, which kills
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`the plant.
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`4 7.
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`Certain plants are extremely sensitive to dicamba even in trace amounts, especially
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`soybeans.
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`48.
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`Other plants including fruit trees, ornamental trees, and vegetable crops also are
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`sensitive to dicamba and damaged by exposure to it.
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`49.
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`It is well known to agro-chemical companies like Monsanto and BASF that
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`dicamba has extreme negative effects on desirable broad-leaf plants, including trees, fruits,
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`vegetables, and various crops, especially soybeans.
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`50.
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`A healthy soybean plant will produce fully-developed pods and leaves throughout
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`the stem of the plant.
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`51.
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`Dicamba exposure to susceptible plants and crops, including soybeans, results in
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`unique and distinctive physical symptoms including leaf cupping, alone or together with other
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`symptoms such as curling, strapping, discoloration, leaf elongation, wrinkling, stunting, and
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`twisting. A soybean plant damaged by dicamba will lose pods throughout the stem as well as
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`number of beans per pod.
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`52.
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`It also is well known to companies like Monsanto and BASF that dicamba is
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`extremely volatile, meaning that it has a high propensity to evaporate, or vaporize, from soil and/or
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`plant surfaces and move as small particles through the air to deposit onto non-target plants and
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`crops. Vaporized dicamba can travel great distances before falling onto and damaging susceptible
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`off-target plants and crops not resistant to dicamba.
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`53.
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`In addition, dicamba's volatility is long-lived, meaning longer exposure for non-
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`tolerant plants and increased risk of movement.
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`54.
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`Dicamba not only is very volatile but very prone to spray drift.
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`55.
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`Such drift, as opposed to volatilization, is movement of spray droplets to non-target
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`areas. Such drift can be influenced by weather, wind speed and direction, droplet size and ground
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`speed or spray pressure.
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`56.
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`Temperature inversions increase the likelihood of movement by drift as well as
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`volatilization. A temperature inversion occurs where the air above the ground is warmer than the
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`ground itself. An inversion layer forms where the warmer air is present, blocking atmospheric
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`flow. This causes the air over the inversion layer to become stable, trapping everything inside of
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`the layer and allowing it to move long distances.
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`57.
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`Dicamba (first sold by BASF under the brand name Banvel) has been on the market
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`in various forms since the 1960s, but for all these reasons, historically has been used in pre-planting
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`or post-harvest burndown. Because this application occurs in cooler parts of the year and typically,
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`there are no neighboring, growing crops to damage during burndown, there is less risk in applying
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`dicamba during this stage.
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`58.
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`In order to apply dicamba over the top of growing plants so as to kill unwanted
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`weeds but not the crop, a genetic modification for tolerance to dicamba would need to be
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`developed.
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`59. Monsanto entered into agreements with BASF to create, accelerate, promote, and
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`commercialize a dicamba-based crop system.
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`60.
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`A genetically engineered trait for soybean and cotton seed to withstand dicamba
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`was developed by Monsanto and BASF, marketed and sold expressly for in-crop use of dicamba
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`herbicide. There is no reason for, or value in, genetic modification to tolerate dicamba herbicide
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`except for in-crop use of such herbicide.
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`61.
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`At all relevant times, Monsanto and BASF acted together in the design,
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`development, promotion, marketing and sale of such a system, consisting of the dicamba-resistant
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`trait, seed containing that trait, and dicamba herbicide.
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`62. Monsanto and BASF entered into one or more agreements to combine their
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`property, money, efforts, skill and knowledge in partnership, joint venture or joint enterprise for
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`their mutual benefit and profit, with common purpose and community of interest in that purpose,
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`equal right to voice and control, and the sharing of profits and losses.
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`63.
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`These companies' history with dicamba-resistant technology traces back to 1993
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`when Sandoz Agro, Inc. ("Sandoz") contracted with the University of Nebraska to fund research
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`being done by University researchers including Donald Weeks relating to dicamba resistance.
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`BASF purchased Sandoz assets, including rights in know-how for dicamba-based products. In
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`2005, the University entered into another contract with Monsanto, which Monsanto claimed
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`granted it exclusive world-wide rights in dicamba-resistant technology. Both companies claimed
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`entitlement to rights in a lawsuit in which Monsanto intervened in 2006.
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`64.
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`Ultimately, Monsanto obtained a number of patents covering genetic modification
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`for resistance to dicamba.
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`65.
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`In 2007, Monsanto and BASF entered into one or more agreements to design,
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`develop, and accelerate biotechnology traits and products, sharing proprietary information and a
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`joint budget of some $1.5 billion. Biotechnology traits would be commercialized by Monsanto,
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`with profits split 60% to Monsanto and 40% to BASF.
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`Joint News Release (BASF from
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`Limburgerhof, Germany and Monsanto from St. Louis, Missouri), BASF Plant Science and
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`Monsanto to Expand Their Collaboration in Maximizing Crop Yield (July 7, 2010), https://
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`monsanto.com/news-releases/basf-plant-science-and-monsanto-to-expand-their-collaboration-in(cid:173)
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`maximizing-crop-yield/.
`
`66.
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`In a joint press release issued by BASF (from Germany) and Monsanto (from St.
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`Louis), Robb Fraley, Monsanto's Chief Technology Officer and Executive Vice President, stated:
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`"By broadening the pipeline of potential traits, exchanging technology and sharing risk, this
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`collaboration can accelerate the discovery of next-generation technologies for the farm and
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`effectively double the risk-adjusted net present value of Monsanto's yield and stress trait
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`technology pipeline."
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`News Release, BASF and Monsanto Announce R&D and
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`Commercialization Collaboration Agreement in Plant Biotechnology (March 21, 2007),
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`https://monsanto.com/news-releases/basf-and-monsanto-announce-rd-and-commercialization(cid:173)
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`collaboration-agreement-in-plant-biotechnology/.
`
`67. Monsanto and BASF aggressively advertised and touted what became the Roundup
`
`Ready Xtend Crop System ("Xtend Crop System"), designed as and consisting of seed containing
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`the dicamba-resistant trait and dicamba herbicide.
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`68. Monsanto and BASF consider - and have always described and marketed - seed
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`containing the dicamba-resistant trait and dicamba herbicide as an integrated weed control system.
`
`69.
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`In January 2009, Monsanto (from St. Louis) and BASF (from Germany) announced
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`a joint licensing agreement to accelerate use of dicamba-based weed control chemistry products,
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`stating that Monsanto and BASF both "will participate in the development of innovative
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`formulations for dicamba for use with herbicide-resistant cropping systems." News Release, BASF
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`and Monsanto Formalize Agreement to Develop Dicamba-Based Formulation Technologies (Jan.
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`20,
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`2009),
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`https:/ /monsanto.com/news-releases/basf-and-monsanto-formalize-agreement-to(cid:173)
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`develop-dicamba-based-formulation-technologies/.
`
`70. Monsanto and BASF explained: "Crops that are resistant to both Roundup®
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`agricultural herbicides and dicamba" would represent the next generation of herbicide-resistant
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`crops and that "[i]mproved formulations of dicamba are being developed to complement this new
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`combination of herbicide-resistant crops." Id.
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`71.
`
`Emmanuel Butstraen, Group Vice President, Global Strategic Marketing,
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`Herbicides, for BASF stated: "We are very excited to actively participate in developing innovative
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`solutions for this next-generation cropping system for growers." Id.
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`72.
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`By 2010, Monsanto and BASF added a joint investment of more than $1 billion to
`
`their collaboration.
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`73.
`
`In a joint press release on July 10, 2010, Monsanto (from St. Louis) and BASF
`
`(from Germany), Peter Eckes, President of BASF Plant Science (a subsidiary, "division," and
`
`agent of BASF SE), stated: "The collaboration with Monsanto was not only the first agreement
`
`that we entered, it also represents our most significant partnership, covering several large row
`
`crops ... The expansion of our partnership reflects the fit between the two companies." News
`
`Release, BASF Plant Science and Monsanto to Expand Their Collaboration in Maximizing Crop
`
`Yield (July 7, 2010), https://monsanto.com/news-releases/basf-plant-science-and-monsanto-to(cid:173)
`
`expand-their-collaboration-in-maximizing-crop-yield/.
`
`74.
`
`In a joint press release on November 2, 2010, Monsanto (from St. Louis) and BASF
`
`(from Germany) announced "significant progress toward launching next-generation dicamba(cid:173)
`
`based weed control systems for soybeans and cotton." Joint Press Release, BASF and Monsanto
`
`Page 14 of96
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`Case 2:20-cv-00081-BSM Document 1 Filed 04/10/20 Page 15 of 96
`
`Announce Progress in Dicamba Formulations (Nov. 2, 2010), https://monsanto.com/news(cid:173)
`
`releases/basf-and-monsanto-announce-progress-in-dicamba-formulations/.
`
`75.
`
`Kerry Preete, Monsanto Vice President of Crop Protection, stated: "Together
`
`the strength of the formulation expertise BASF has with dicamba and our team's biotech focus
`
`seeks to deliver another breakthrough product in weed control." Id.
`
`76.
`
`BASF made the decision early on that Engenia was being developed specifically
`
`for use in the dicamba-tolerant cropping system. See Ag Professional (April 30, 2014),
`
`https://www.agprofessional.com/article/engenia-specific-dicamba-resistant-crops.
`
`77. Markus Heldt, president ofBASF's Crop Protection division, stated: "The dicamba
`
`tolerant system is designed [to] give growers pre- and post-emergence application flexibility,
`
`allowing them to better manage their resources and thus improving productivity." Joint Press
`
`Release (Monsanto from St. Louis and BASF from Germany), BASF and Monsanto Announce
`
`Progress in Dicamba Formulations (Nov. 2, 2010), https://monsanto.com/news-releases/basf-and(cid:173)
`
`monsanto-announce-progress-in-dicamba-formulations/.
`
`78.
`
`In 2010, BASF SE told shareholders that it continuously invests in "pipeline"
`
`products, including "HT [Herbicide Tolerant] Project Dicamba." BASF SE 2010 Annual Report
`
`(Management Analysis) at 70 (https://www.basf.com/documents/corp/en/aboutus/publications/
`
`reports/2011/BASF _Report_2010.pdt).
`
`79.
`
`In a January 6, 2011 Press Release, Monsanto described collaborative "Agronomic
`
`Traits Projects," which included dicamba-tolerant soybeans. Peter Eckes from BASF stated: "The
`
`advances in development show that we chose the right path in our partnership with Monsanto ...
`
`BASF is confident that our genes will result in crops that produce significantly higher yields and
`
`that we will be able to make these available to farmers in the future." Press Release, Monsanto
`
`Page 15 of96
`
`

`

`Case 2:20-cv-00081-BSM Document 1 Filed 04/10/20 Page 16 of 96
`
`Announces Nine Project Advancements in Annual Research and Development Pipeline (Jan. 6,
`
`2011 ), https:/ /monsanto.com/news-releases/monsanto-announces-nine-project-advancements-in(cid:173)
`
`annual-research-and-development-pipeline-update/.
`
`80.
`
`In a March 14, 2011 joint press release, Monsanto (from St. Louis) and BASF (from
`
`Germany) described agreement to "collaborate on the advancement of dicamba tolerant cropping
`
`systems. The companies have granted reciprocal licenses and BASF has agreed to supply
`
`formulated dicamba herbicide products to Monsanto." Joint Press Release, BASF and Monsanto
`
`Take Dicamba Tolerant Cropping System Collaboration to the Next Level (March 14, 2011),
`
`https://monsanto.com/news-releases/basf-and-monsanto-take-dicamba-tolerant-cropping-system(cid:173)
`
`collaboration-to-the-next-level/.
`
`81.
`
`Robb Fraley, Monsanto's Chief Technology Officer, stated: "Our work with BASF
`
`brings us one step closer to bringing more improved weed control offerings to farmers. We expect
`
`the formulations to be an excellent complement to Monsanto's dicamba tolerant seed technologies
`
`when they are brought to market." Id.
`
`82.
`
`In 2016, Monsanto described the Xtend Crop System as consisting of dicamba-
`
`resistant seed and generically, "Xtend herbicide," then "pending regulatory approvals" and said
`
`the system was "pending regulatory approvals for its component products." Monsanto Website,
`
`Roundup Ready 2 Xtend Soybeans Currently in Phase IV of Monsanto's R&D Pipeline,
`
`http://web.archive.org/web/20160124141008/http://www.monsanto.com/products/pages/roundup
`
`-ready-2-xtend-soybeans.aspx.
`
`83. Monsanto also has described XtendiMax as "[a]n integral component of the
`
`Roundup Ready® Xtend Crop System." Monsanto Website, Roundup Ready Xtend Crop System
`
`Page 16 of96
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`

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`Case 2:20-cv-00081-BSM Document 1 Filed 04/10/20 Page 17 of 96
`
`Chemistry, http://www.roundupreadyxtend.com/About/Chemistry/Pages/default.aspx (last visited
`
`Dec. 19, 2017).
`
`84.
`
`According to Monsanto, the "Xtend Crop System" is "comprised of both seed and
`
`herbicide solutions." The Next Step in Weed Management, https://www.roundupreadyplus.
`
`com/Content/assets/docs/forum/NeedToKnow _ RoundupReady XtendCropSystem.pdf
`
`(last
`
`visitedDec.19,2017).
`
`85.
`
`Dan Westberg, regional tech service representative for BASF, said that "Engenia is
`
`that step change improvement that we've developed specifically for the dicamba-tolerant crops -
`
`cotton in 2015 and soybeans, hopefully, in2016." Forrest Laws, Engenia to offer 'most advanced'
`
`formulation of dicamba available
`
`(Aug. 25, 2014), http://www.deltafarmpress.com/
`
`cotton/engenia-offer-most-advanced-formulation-dicamba-available.
`
`86. Monsanto and BASF conducted joint field testing of dicamba-based formulations
`
`applied over the top of dicamba-tolerant soybeans in development. Their collaboration also
`
`includes joint development of stewardship, education programs, and best practices to "support long
`
`term sustainability" of a dicamba-tolerant system. Monsanto and BASF Yield-and-Stress
`
`Collaboration
`
`Field
`
`Tour Monmouth
`
`Research
`
`Facility
`
`(Aug.
`
`8,
`
`2011),
`
`https://www.basf.com/documents/corp/en/investor-relations/calendar-andpublications/calendar/
`
`201 l/roundtable_agricultural/110808_Agro_Roundtable_201 l_Tour.pdf.; see also Joint Press
`
`Release, BASF and Monsanto Take Dicamba Tolerant Cropping System Collaboration to the Next
`
`Level (March 14, 2011), https://monsanto.com/news-releases/basf-and-monsanto-take-dicamba(cid:173)
`
`tolerant-cropping-system-collaboration-to-the-next-level/ (stating that Monsanto and BASF are
`
`collaborating to facilitate further development work and subsequent commercialization of "a
`
`dicamba tolerant system, which includes innovative dicamba formulations proprietary to BASF
`
`Page 17 of96
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`Case 2:20-cv-