Case 2:20-cv-00101-KS-MTP Document 1 Filed 05/27/20 Page 1 of 118
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`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF MISSISSIPPI
`EASTERN DIVISION
`
`Triple Eaton Farms, LLC, a
`Mississippi limited liability
`company,
`
`2:20-cv-101-KS-MTP
`Case No._____________
`
`Plaintiff,
`
`JURY TRIAL DEMANDED
`
`vs.
`
`Monsanto Company, BASF SE, and
`BASF Corporation,
`
`Defendants.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF MISSISSIPPI
`EASTERN DIVISION
`
`Triple Eaton Farms, LLC, a
`Mississippi limited liability
`company,
`
`2:20-cv-101-KS-MTP
`Case No._____________
`
`Plaintiff,
`
`JURY TRIAL DEMANDED
`
`vs.
`
`Monsanto Company, BASF SE, and
`BASF Corporation,
`
`Defendants.
`
`
`
`Case 2:20-cv-00101-KS-MTP Document 1 Filed 05/27/20 Page 2 of 118
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`
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`COMPLAINT
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`Plaintiff Triple Eaton Farms, LLC brings these claims against defendants Monsanto
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`Company, BASF SE, and BASF Corporation, and states as follows:
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`NATURE OF THE ACTION
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`Plaintiff suffered damages as a result of the design, development, promotion, and
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`sale of a genetically engineered trait conferring resistance to dicamba expressly for the
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`purpose of spraying dicamba herbicide over the top of growing plants as part of a dicamba-
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`based crop system. Defendants knew that dicamba, highly volatile and prone to drift, is
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`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
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`they did and failed to do increased that risk, all but ensuring damage to non-dicamba
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`resistant plants and crops. That damage in fact served Defendants’ purpose of pressuring
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`farmers to purchase dicamba-resistant seed out of self-protection. Defendants created and
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`carried out a scheme of ecological disaster for their financial gain and to the detriment of
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`the very persons they knew would be harmed.
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`PARTIES
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`
`
`Plaintiff
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`1.
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`Triple Eaton Farms, LLC is a limited liability company registered to do
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`business in Mississippi. Plaintiff’s sole member is Arthur Eaton, a citizen of Mississippi.
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`In 2017, Plaintiff farmed a variety of fruits and vegetables, including tomatoes and
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`watermelon, in Jefferson Davis County, Mississippi that were damaged by dicamba. In
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`
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`1
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`2018, Plaintiff farmed peppers in Jefferson Davis County, Mississippi that were damaged
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`by dicamba.
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`
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`Defendants
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`2. Monsanto Company (“Monsanto”) is a corporation organized and existing
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`under the laws of the State of Delaware with its corporate headquarters and principal place
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`of business in St. Louis County, Missouri.
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`3. Monsanto designs, develops, manufactures,
`
`licenses,
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`and
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`sells
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`biotechnology, chemicals, and other agricultural products, including herbicides and seed
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`genetically modified to produce crops resistant thereto. These include Roundup Ready 2
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`Xtend Soybean (“Xtend soybeans”), Bollgard II XtendFlex Cotton (“Xtend cotton”) and a
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`herbicide known as XtendiMax with VaporGrip Technology® (“XtendiMax”).
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`4. Monsanto also licenses and sells a genetically engineered trait in soybean
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`and cotton seed, and seed containing that trait, for intended use with dicamba herbicide,
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`marketed and sold in states including Mississippi.
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`5.
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`BASF SE is a corporation organized and existing under the laws of Germany
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`with its overall headquarters in Ludwigshafen, Germany. BASF SE describes itself as the
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`largest chemical company in the world. In materials describing the company, BASF SE
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`lists one of its “Country Headquarters” as BASF Corporation, 100 Park Avenue, Florham
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`Park, New Jersey.
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`6.
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`BASF Corporation is a company organized and existing under the laws of
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`the State of Delaware, with corporate headquarters at 100 Park Avenue, Florham Park,
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`New Jersey and/or research headquarters at 26 Davis Drive, Research Triangle Park, North
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`
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`2
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`Carolina. BASF Corporation is the largest affiliate of BASF SE and the second largest
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`producer and marketer of chemicals and related products in North America. It is a
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`subsidiary and North American agent for BASF SE.
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`7.
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`BASF Corporation is the entity whose name and address appears on labels
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`of the dicamba herbicide known as Engenia. Dr. Jeffrey Birk (BASF, 26 Davis Drive
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`Research Triangle Park, North Carolina), is listed as “registrant” on the EPA Notice of
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`Pesticide Registration for Engenia (EPA Reg. No. 7969-345) dated December 20, 2016.
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`On information and belief, Dr. Jeffrey Birk is a Regulatory Manager at BASF Corporation.
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`8.
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`Chemical manufacturers and importers are required to develop a Safety Data
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`Sheet for each hazardous chemical they produce. See 29 CFR 1910.1200(g). A Safety Data
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`Sheet for Engenia dated January 16, 2017 identifies BASF SE (67056 Ludwigshafen,
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`Germany), as the supplier of the safety data, with a “Contact address” of BASF
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`Corporation, 100 Park Avenue, Florham Park, New Jersey 07932.
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`9.
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`BASF SE is a global company that extensively integrates operational,
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`managerial, and financial resources across entity lines. BASF SE and its group of entities
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`operate by business segments or “divisions.” Employees have reporting relationships and
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`carry on activities defined not by corporate relationships but by such business or
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`operational segments. “Agricultural Solutions” and/or “Crop Protection” is a business
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`segment within and supported by this integrated organization. For example, entities within
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`the BASF organization share operational systems and services including finance, legal,
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`taxes, intellectual property, investor relations, communications and government relations,
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`human resources, engineering and site management, environmental protection, and health
`
`
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`3
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`
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`and
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`safety. BASF Website,
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`“Organization
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`of
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`the BASF Group,”
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`https://www.basf.com/en/company/about-us/strategy-and-organization/ structure.html.
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`10.
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`“Within BASF Group, BASF SE takes a central position: Directly or
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`indirectly, it holds the shares in the companies belonging to the BASF Group, and is also
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`the
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`largest
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`operating
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`company.” BASF
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`SE Webpage,
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`“About Us,”
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`https://www.basf.com/de/en/company/about-us/strategy-and-organization.html.
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`The
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`BASF SE Board of Executive Directors is responsible for overall management of the
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`company, and BASF SE exercises authority and control over BASF Corporation and its
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`operations. BASF SE and BASF Corporation share one or more officers and/or directors.
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`On information and belief, at least two of the three current BASF Corporation directors are
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`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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`11. BASF SE coordinates crop protection activities from the BASF Agricultural
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`Center
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`in Limburgerhof, Germany. See BASF Brochure
`
`(BASF SE/Global
`
`Communications
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`Crop
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`Protection,
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`2016),
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`https://industries.basf.com/assets/global/corp/en/Agriculture/Crop%20Protection/Brochur
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`e%20Crop%20Protection%20Englisch.pdf.
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`12. BASF Corporation is an agent through which business in North America is
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`conducted. Jurisdictional contacts of BASF Corporation are attributable to BASF SE.
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`13.
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`In addition, and on information and belief, BASF SE and BASF Corporation
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`each has participated directly in the events alleged herein pertaining to the design,
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`development, release, promotion, marketing, and sale of the dicamba-based crop system.
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`4
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`14. BASF SE and BASF Corporation regularly refer to themselves as “BASF”
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`with no further description, and unless otherwise indicated, are herein referred to
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`collectively as “BASF.”
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`15. 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
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`venture, joint enterprise, or similar relationship to develop technologies for a dicamba-
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`based crop system, respecting which they jointly fund projects and share risks and profits.
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`They jointly developed a dicamba-based crop system entailing the dicamba-resistant trait,
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`as well as dicamba formulations for application over the top of crops grown from that trait,
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`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
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`designing, developing, marketing, manufacturing, licensing and sale of the dicamba-based
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`crop system.
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`16. Among other things, BASF provided Monsanto with the dicamba
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`formulation that became XtendiMax. BASF markets and sells its own dicamba herbicide
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`Engenia specifically for use with seed containing the dicamba-resistant trait.
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`17. At all relevant times, Monsanto and BASF acted together and in concert as
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`joint venturers, joint enterprises, partners and co-conspirators who shared financial risks
`
`and benefits, proprietary dicamba formulations and bioengineered crop traits, collaborated
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`in and jointly conducted field testing, marketing, promotion, training, and other shared
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`activities all with the common interest and purpose of creating ever more demand for seed
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`with the dicamba-resistant trait and further use of dicamba, each acting in its own right and
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`5
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`as agent for the other.
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`JURISDICTION AND VENUE
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`18.
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`This Court has subject matter jurisdiction over this case under 28 U.S.C. §
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`1331 in that claims are asserted under the Lanham Act, 15 U.S.C. § 1125(a), and the Court
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`has supplemental jurisdiction over state claims pursuant to 28 U.S.C. § 1367(a).
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`19. Additionally, this Court has jurisdiction under 28 U.S.C. §1332(a). The
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`amount in controversy exceeds $75,000 exclusive of interest and costs. Plaintiff is a citizen
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`of Mississippi and Defendants are not. BASF Corp. is a citizen of Delaware and New Jersey
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`or North Carolina, Monsanto Co. is a citizen of Delaware and Missouri, and BASF SE is a
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`citizen of a foreign state, Germany.
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`20.
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`This Court has specific personal jurisdiction over all Defendants, each of
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`whom has employees in Mississippi, itself or through an agent purposefully directed
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`numerous activities at Mississippi and its residents, entered into contracts, transacted
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`business, and/or committed tortious acts, in Mississippi including but not limited to
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`development, advertising, distributing, and selling the dicamba-resistant trait and seed
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`containing it, as well as dicamba herbicides and the dicamba-based crop system, as well as
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`inadequate training, from which the injuries and claims herein arise and/or to which they
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`relate.
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`21. BASF and Monsanto at all relevant times acted together and in concert, as
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`agents, joint-venturers, joint enterprises, partners and co-conspirators with common intent
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`and purpose and in single enterprise to develop, promote, market and sell the dicamba-
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`based crop system at issue. Jurisdictional contacts of Monsanto are attributable to BASF.
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`6
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`22. Venue is proper in this district pursuant to 28 U.S.C. § 1391. All Defendants
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`are residents of this district under 28 U.S.C. § 1391(c)(2) in that they are entities subject to
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`the court’s personal jurisdiction. Additionally, BASF SE may be sued in this district under
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`28 U.S.C. § 1391(c)(3). In addition, a substantial part of the events or omissions giving rise
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`to the claims occurred in this district and property harmed is situated therein such that
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`venue is also proper in this district pursuant to 28 U.S.C. § 1391(b)(2).
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`23. Defendants have and continue, at minimum, to advertise, market, sell, or
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`otherwise disseminate, the dicamba-resistant trait and seed containing it, dicamba
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`herbicides, and the dicamba-based crop system in Mississippi and this district.
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`FACTUAL BACKGROUND AND GENERAL ALLEGATIONS
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`A. Monsanto, Glysphosate, and Super Weeds
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`24. Monsanto was one of the first companies to utilize biotechnology in the field
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`of agriculture and has become a leading producer of genetically modified seed and agro-
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`chemicals.
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`25. Biotechnology has made possible the introduction of genetic characteristics,
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`or traits, into plant seeds.
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`26.
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`In the 1970s, Monsanto patented the glyphosate molecule, which became the
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`active ingredient in Roundup herbicide.
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`27. Glyphosate is a non-selective herbicide that causes severe injury or
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`destruction to plants, including soybean and cotton, that have not been genetically modified
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`to tolerate it.
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`28.
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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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`29. Monsanto also genetically engineered seed to withstand its glyphosate
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`herbicide, sold under the brand name Roundup Ready (“RR”).
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`30. Monsanto’s development and sale of the glyphosate-tolerant trait changed
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`how farmers could apply glyphosate herbicide. Rather than being applied before the crop
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`is planted (in “burndown” stage), Roundup can be sprayed over the top of growing crops
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`genetically modified to withstand it. As a result, farmers planting glyphosate-tolerant crops
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`can apply it over an entire field after the crop has emerged without damage to the crop
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`itself. Over-the-top application of glyphosate is now commonplace.
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`31. Monsanto began selling RR soybean seed in 1996 and RR corn seed in 1998.
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`Other crops genetically altered to withstand Roundup herbicide include canola, cotton,
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`alfalfa, and sugar beets.
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`32.
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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
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`combination.
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`33.
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`The glyphosate-resistant trait is a technology that Monsanto patented, owns
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`and licenses. A farmer cannot obtain that technology without buying the seed into which it
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`has been inserted.
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`34. Until 2015, Monsanto held the patent on its “first generation” Roundup
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`Ready (“RR1”) trait.
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`35. Well before Monsanto’s patent on its original RR technology expired in
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`2015, Monsanto patented a “second generation” Roundup Ready (“RR2”) trait, which
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`expresses the same enzyme that confers glyphosate resistance as before.
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`36. Monsanto charges more for its RR2Yield soybean seed than its original RR1
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`soybean seed, marketing it as having better yield, which it does not as compared to RR1
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`and/or other varieties.
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`37. More than 90% of soybeans and approximately 80% of corn and cotton are
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`grown from seed containing Monsanto’s RR trait.
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`38. As of 2016, glyphosate had become the most-used agricultural chemical
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`ever.
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`39. Weeds, however, have evolved to become naturally resistant to glyphosate.
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`These are known as “super weeds.”
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`40. Monsanto’s sale and distribution of the RR trait and Roundup herbicide set
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`in motion a dangerous cycle whereby weeds evolve to resist the chemicals designed to
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`destroy them, forcing farmers to apply higher doses or use different herbicides.
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`41. Monsanto’s RR trait and Roundup herbicide directly contributed to this
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`problem. All the while, Monsanto made massive profits.
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`B. Development of the Dicamba-based Crop System
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`42. Recognizing the opportunity to protect and enhance its dominance with RR,
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`and to capitalize on and dominate the market with a new trait to address the weed problem
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`Monsanto’s own Roundup products produced, Monsanto, along with BASF, set out to
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`develop a crop system featuring dicamba, an exceptionally volatile and damaging
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`herbicide.
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`43. According to Monsanto President, Brett Begemann, this new crop system
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`provides Monsanto “a source of growth longer term.” Carey Gillam, Monsanto to invest
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`more
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`than $1 bln
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`in dicamba herbicide production
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`(June 24, 2015),
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`https://www.reuters.com/article/monsanto-dicamba/monsanto-to-invest-more-than-1-bln-
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`in-dicamba-herbicide-production-idUSL1N0ZA1XN20150624.
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`44. Originally invented by BASF, dicamba is a broad-spectrum systemic
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`herbicide that destroys broadleaf weeds and plants.
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`45. Dicamba mimics the plant hormone auxin, causing uncontrolled cell division
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`and growth, causing the plant to grow so fast that it cannot retain the nutrients it requires,
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`which kills the plant.
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`46. Certain plants are extremely sensitive to dicamba even in trace amounts,
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`especially soybeans.
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`47. Other plants including fruit trees, ornamental trees, and vegetable crops also
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`are sensitive to dicamba and damaged by exposure to it.
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`48.
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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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`49. A healthy soybean plant will produce fully-developed pods and leaves
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`throughout the stem of the plant.
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`50.
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`Exposure of susceptible plants and crops to dicamba, including peppers,
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`tomatoes, and watermelon, results in unique and distinctive physical symptoms including
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`leaf cupping, alone or together with other symptoms such as curling, strapping,
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`discoloration, leaf elongation, wrinkling, stunting, and twisting. A soybean plant damaged
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`by dicamba, for example, will lose pods throughout the stem as well as number of beans
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`per pod.
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`51.
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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
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`soil and/or plant surfaces and move as small particles through the air to deposit onto non-
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`target plants and crops. Vaporized dicamba can travel great distances before falling onto
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`and damaging susceptible off-target plants and crops not resistant to dicamba.
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`52.
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`In addition, dicamba’s volatility is long-lived, meaning longer exposure for
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`non-tolerant plants and increased risk of movement.
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`53. Dicamba not only is very volatile but very prone to spray drift.
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`54.
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`Such drift, as opposed to volatilization, is movement of spray droplets to non-
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`target areas. Such drift can be influenced by weather, wind speed and direction, droplet
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`size and ground speed or spray pressure.
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`55.
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`Temperature inversions increase the likelihood of movement by drift as well
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`as volatilization. A temperature inversion occurs where the air above the ground is warmer
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`than the ground itself. An inversion layer forms where the warmer air is present, blocking
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`atmospheric flow. This causes the air over the inversion layer to become stable, trapping
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`everything inside of the layer and allowing it to move long distances.
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`56. Dicamba (first sold by BASF under the brand name Banvel) has been on the
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`market in various forms since the 1960s, but for all these reasons, historically has been
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`used in pre-planting or post-harvest burndown. Because this application occurs in cooler
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`parts of the year and typically, there are no neighboring, growing crops to damage during
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`burndown, there is less risk in applying dicamba during this stage.
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`57.
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`In order to apply dicamba over the top of growing plants so as to kill
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`unwanted weeds but not the crop, a genetic modification for tolerance to dicamba would
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`need to be developed.
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`58. Monsanto entered into agreements with BASF to create, accelerate, promote,
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`and commercialize a dicamba-based crop system.
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`59. A genetically engineered trait for soybean and cotton seed to withstand
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`dicamba was, as part of the dicamba-based crop system developed by Monsanto and BASF,
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`marketed and sold expressly for in-crop use of dicamba herbicide. There is no reason for,
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`or value in, genetic modification to tolerate dicamba herbicide except for in-crop use of
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`such herbicide.
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`60. 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-
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`resistant trait, seed containing that trait, and dicamba herbicide.
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`61. 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
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`enterprise for their mutual benefit and profit, with common purpose and community of
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`interest in that purpose, equal right to voice and control, and the sharing of profits and
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`losses.
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`62.
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`These companies’ history with dicamba-resistant technology traces back to
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`1993 when Sandoz Agro, Inc. (“Sandoz”) contracted with the University of Nebraska to
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`fund research being done by University researchers including Donald Weeks relating to
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`dicamba resistance. BASF purchased Sandoz assets, including rights in know-how for
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`dicamba-based products. In 2005, the University entered into another contract with
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`Monsanto, which Monsanto claimed granted it exclusive world-wide rights in dicamba-
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`resistant technology. Both companies claimed entitlement to rights in a lawsuit in which
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`Monsanto intervened in 2006.
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`63. Ultimately, Monsanto obtained a number of patents covering genetic
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`modification for resistance to dicamba.
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`64.
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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
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`and a joint budget of some $1.5 billion. Biotechnology traits would be commercialized by
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`Monsanto, with profits split 60% to Monsanto and 40% to BASF. Joint News Release
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`(BASF from Limburgerhof, Germany and Monsanto from St. Louis, Missouri), BASF
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`Plant Science and Monsanto to Expand Their Collaboration in Maximizing Crop Yield
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`(July 7, 2010), https://monsanto.com/news-releases/basf-plant-science-and-monsanto-to-
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`expand-their-collaboration-in- maximizing-crop-yield/.
`
`65.
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`In a joint press release issued by BASF (from Germany) and Monsanto (from
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`St. Louis), Robb Fraley, Monsanto’s Chief Technology Officer and Executive Vice
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`President, stated: “By broadening the pipeline of potential traits, exchanging technology
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`and sharing risk, this collaboration can accelerate the discovery of next-generation
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`technologies for the farm and effectively double the risk-adjusted net present value of
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`Monsanto’s yield and stress trait technology pipeline.” News Release, BASF and
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`Monsanto Announce R&D and Commercialization Collaboration Agreement in Plant
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`Biotechnology
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`(March 21, 2007), https://monsanto.com/news-releases/basf-and-
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`monsanto-announce-rd-and-commercialization-collaboration-agreement-in-plant-
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`biotechnology/.
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`66. Monsanto and BASF aggressively advertised and touted what became the
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`Roundup Ready Xtend Crop System (“Xtend Crop System”), designed as and consisting
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`of seed containing the dicamba-resistant trait and dicamba herbicide.
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`67. Monsanto and BASF consider–and have always described and marketed–
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`seed containing the dicamba-resistant trait and dicamba herbicide as an integrated weed
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`control system.
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`68.
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`In January 2009, Monsanto (from St. Louis) and BASF (from Germany)
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`announced a joint licensing agreement to accelerate use of dicamba-based weed control
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`chemistry products, stating that Monsanto and BASF both “will participate in the
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`development of innovative formulations for dicamba for use with herbicide-resistant
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`cropping systems.” News Release, BASF and Monsanto Formalize Agreement to Develop
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`Dicamba-Based Formulation Technologies (Jan. 20, 2009), https://monsanto.com/news-
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`releases/basf-and-monsanto-formalize-agreement-to-develop-dicamba-based-
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`formulation-technologies/.
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`69. 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-
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`resistant crops and that “[i]mproved formulations of dicamba are being developed to
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`complement this new combination of herbicide-resistant crops.” Id.
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`70.
`
`Emmanuel Butstraen, Group Vice President, Global Strategic Marketing,
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`14
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`
`
`Case 2:20-cv-00101-KS-MTP Document 1 Filed 05/27/20 Page 16 of 118
`
`
`
`Herbicides, for BASF stated: “We are very excited to actively participate in developing
`
`innovative solutions for this next-generation cropping system for growers.” Id.
`
`71. By 2010, Monsanto and BASF added a joint investment of more than $1
`
`billion to their collaboration.
`
`72.
`
`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-expand-their-collaboration-in-maximizing-
`
`crop-yield/.
`
`73.
`
`In a joint press release on November 2, 2010, Monsanto (from St. Louis) and
`
`BASF SE (from Germany) announced “significant progress toward launching next-
`
`generation dicamba- based weed control systems for soybeans and cotton.” Joint Press
`
`Release, BASF and Monsanto Announce Progress in Dicamba Formulations (Nov. 2,
`
`2010),
`
`https://monsanto.com/news-releases/basf-and-monsanto-announce-progress-in-
`
`dicamba-formulations/.
`
`74. 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.
`
`
`
`15
`
`
`
`Case 2:20-cv-00101-KS-MTP Document 1 Filed 05/27/20 Page 17 of 118
`
`
`
`75. 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.
`
`76. Markus Heldt, president of BASF’s Crop Protection division, BASF SE,
`
`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-monsanto-announce-progress-in-
`
`dicamba-formulations/.
`
`77.
`
`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_Rep
`
`ort_2010.pdf).
`
`78.
`
`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 Announces Nine Project Advancements in
`
`
`
`16
`
`
`
`Case 2:20-cv-00101-KS-MTP Document 1 Filed 05/27/20 Page 18 of 118
`
`
`
`Annual Research and Development Pipeline (Jan. 6, 2011), https://monsanto.com/news-
`
`releases/monsanto-announces-nine-project-advancements-in-annual-research-and-
`
`development-pipeline-update/ (emphasis added).
`
`79.
`
`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-collaboration-to-the-next-level/.
`
`80. 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.
`
`81.
`
`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/r
`
`oundup-ready-2-xtend-soybeans.aspx.
`
`82. Monsanto also has described XtendiMax as “[a]n integral component of the
`
`
`
`17
`
`
`
`Case 2:20-cv-00101-KS-MTP Document 1 Filed 05/27/20 Page 19 of 118
`
`
`
`Roundup Ready® Xtend Crop System.” Monsanto Website, Roundup Ready Xtend Crop
`
`System
`
`Chemistry,
`
`http://www.roundupreadyxtend.com/About/Chemistry/Pages/default.aspx
`
`(last visited
`
`Dec. 19, 2017).
`
`83. 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_RoundupReadyXtendCropSystem.pdf
`
`
`
`(last visited Dec. 19, 2017).
`
`84. 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, in 2016.” 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.
`
`85. 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/2011/roundtable_agricultural/110808_Agro_Roundtable_2011_
`
`
`
`18
`
`
`
`Case 2:20-cv-00101-KS-MTP Document 1 Filed 05/27/20 Page 20 of 118
`
`
`
`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- 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 and
`
`the dicamba tolerant trait for soybeans, which is proprietary to Monsanto” and
`
`“development of stewardship guidelines and best management practices for the dicamba
`
`tolerant system.”).
`
`86.
`
`E.I. DuPont de Nemours and Company (“Dupont”) (itself and/or through
`
`affiliates including DuPont Pioneer, formerly Pioneer Hi-Bred) is a leading developer,
`
`producer, and marketer of soybean and corn seed, and historically, a competitor of
`
`Monsanto both as a developer of seed varieties and genetic traits.
`
`87.
`
`Prior to 2013, Monsanto and DuPont were embroiled in litigation
`
`concerning Pioneer’s use of Monsanto’s technology and claims by DuPont that Monsanto
`
`engaged in various anti-competitive behavi
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