Case: 1:16-cv-00299-SNLJ Doc. #: 645 Filed: 11/25/20 Page: 1 of 88 PageID #: 39711
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`SOUTHEASTERN DIVISION
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`BADER FARMS, INC. and
`BILL BADER
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`Plaintiffs,
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`v.
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`MONSANTO CO. and
`BASF CORP.,
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` Defendants.
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`MDL No. 1:18md2820-SNLJ
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`) Case No. 1:16cv299-SNLJ
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`MEMORANDUM and ORDE R
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`After a three-week-long jury trial, this Court entered judgment for plaintiff Bader
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`Farms, Inc. and against defendants Monsanto Company and BASF Corporation and
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`awarded actual damages in the amount of $15,000,000 and punitive damages in the amount
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`of $250,000,000. Currently before the Court are BASF’s renewed motion for judgment as a
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`matter of law [#579], BASF’s alternative motion for a new trial [#581], BASF’s motion to
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`alter judgment [#583], Monsanto’s renewed motion for judgment as a matter of law on
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`punitive damages or motion for new trial or remittitur [#585], Monsanto’s renewed motion
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`for judgment as a matter of law or new trial [#587], Monsanto and BASF’s motions for
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`hearing [#621, #624], BASF’s motion to join Monsanto’s supplemental brief [#643], and
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`plaintiff’s motion to strike [#642].
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`Plaintiff Bader Farms grows peaches and other crops in the Missouri Bootheel
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`region. Plaintiff claims that its peach orchards suffered injury beginning in 2015 after
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`defendants Monsanto Company (a company that sells crop seed and herbicide) and BASF
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`Corporation (a company that sells herbicide) conspired to develop and market dicamba-
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`tolerant (“DT”) seeds and dicamba-based herbicides. Dicamba had long been used as an
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`agricultural herbicide, as it kills many plants not genetically modified to withstand its use.
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`The defendants sought to make DT seeds to combat weeds that had become resistant to
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`Roundup and other herbicides. Dicamba, however, was known for being prone to drift and
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`volatilization, which can cause injury to non-DT crops, so defendants had to formulate a
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`low-volatility herbicide to be used with the DT seed.
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`Plaintiff claims the defendants conspired to create an “ecological disaster,” where
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`Monsanto released its DT seeds in 2015 and 2016 with no corresponding low-volatility
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`dicamba herbicide. As a result, farmers illegally sprayed an old formulation of dicamba
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`herbicide that was unapproved for in-crop, over-the-top use and was prone to drift.
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`Drifting dicamba would cause damage to neighboring, non-tolerant crops, forcing
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`neighboring farmers to plant Monsanto’s dicamba-tolerant seed defensively, and that
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`increased demand for both defendants’ new dicamba herbicide during the 2017 growing
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`season. Some farmers, like plaintiff here, could not plant a DT crop, and they say they
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`suffered injuries from the nearby dicamba use as a result.
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`Numerous lawsuits were filed against defendants based on these circumstances, and
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`the cases filed in federal court have been consolidated into the In re Dicamba Herbicides
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`Multi-District Litigation,1:18-MD-2820-SNLJ (E.D. Mo.) (the “MDL”). The present case
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`was filed on November 23, 2016 and was consolidated into the MDL. Numerous MDL
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`plaintiffs have joined the Master Crop Damage complaint, which focuses on soybean
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`growers in several states. The Bader plaintiff did not join in the Master Crop Damage
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`complaint and followed its own litigation schedule. The parties are in the process of
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`settling the soybean-related and other claims, but the Bader plaintiffs are not involved in
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`those settlement discussions.
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`I. BASF’s Renewed Motion For Judgment As A Matter Of Law [#579]
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`Federal Rule of Civil Procedure 50 states that a court should grant judgment as a
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`matter of law when a party has been fully heard on an issue and there is no legally
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`sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Fed. R.
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`Civ. P. 50(a)(1); Duban v. Waverly Sales Co., 760 F.3d 832, 835 (8th Cir. 2014). The Court
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`must “(1) resolve direct factual conflicts in favor of the nonmovant; (2) assume as true all
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`facts supporting the nonmovant which the evidence tended to prove; (3) give the
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`nonmovant the benefit of all reasonable inferences; and (4) deny the motion if the evidence
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`so viewed would allow reasonable jurors to differ as to the conclusions that could be
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`drawn.” Roberson v. AFC Enters., Inc., 602 F.3d 931, 933 (8th Cir. 2010) (quoting Larson
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`ex rel. Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996) (en banc)).
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` This Court applies the same standard as that for granting summary judgment.
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`Tatum v. City of Berkeley, 408 F.3d 543, 549 (8th Cir. 2005). The motion “must be granted
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`when the non-movant's case rests solely upon speculation and conjecture lacking in
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`probative evidentiary support.” Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039,
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`1050 (8th Cir. 2000) (quotation omitted).
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`A. Joint Venture Claim
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`The jury found that defendants BASF and Monsanto were in a joint venture. BASF
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`argues that the joint venture theory fails as a matter of law because (1) their relationship
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`was fully governed by express written contracts, and (2) there is no evidence of any
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`implied agreement meeting the requirements of a joint venture.
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`1.
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`Legal framework
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`A joint venture is “an association of two or more persons to carry out a single
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`business enterprise for profit.” Ritter v. BJC Barnes Jewish Christian Health Sys., 987
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`S.W.2d 377, 387 (Mo. App. 1999). The elements of a joint venture are (1) “an express or
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`implied agreement among members of the association,” (2) “a common purpose to be
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`carried out by the members,” (3) “a community of pecuniary interest in that purpose,” and
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`(4) an “equal voice” among all members “in determining the direction of the enterprise.”
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`Id. In other words, a joint venture is a partnership that is limited to a single business
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`purpose. See Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5, 14-15 (Mo. 1970).
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`The crux of BASF’s first argument is that “corporations may become members of
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`joint ventures only by express agreement or contract,” relying on In re Genetically
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`Modified Rice Litig., 666 F. Supp. 2d 1004, 1027 (E.D. Mo. 2009), adhered to on
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`reconsideration, 4:06MD1811 CDP, 2011 WL 5024548 (E.D. Mo. Oct. 21, 2011). BASF’s
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`premise appears to be an overstatement of the law. As this Court observed in its
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`Memorandum & Order denying summary judgment [#288 at 16], the Rice decision
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`nonetheless reserved the joint venture question for the jury where the express agreements
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`between defendants showed the companies were operating under their express corporate
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`forms or as a joint venture. Id.
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`The oft-cited case in support of BASF’s argument is Ritter, which states that “courts
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`will not imply a joint venture where the evidence indicates that the parties created a
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`different business form.” Ritter, 987 S.W.2d at 387 (relying on Rosenfeld v. Brooks, 895
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`S.W.2d 132, 135 (Mo. App. E.D. 1995)). That is because “the unequivocal existence of a
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`definite business form is the most reliable expression of the relationship among the
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`parties.” Rosenfeld, 895 S.W.2d at 135, cited by Ritter, 987 S.W.2d at 387. Ritter states
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`that “Although Missouri courts hold that a corporation may be an arm of a joint venture,
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`we will not imply this arrangement.” Id. (citing Rosenfeld, 895 S.W.2d at 135). That said,
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`Ritter went on to consider whether the corporate parties’ relationship met the elements of a
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`joint venture and concluded that it did not. Id.
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`Looking to Rosenfeld, then, the plaintiff there sought to show that the corporation he
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`had created with other individuals was a joint venture and that a sale in stock of a
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`corporation to another company had created a joint venture. Rosenfeld, 895 S.W.2d at 133.
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`The court held that the express contracts governing those transactions did not support that a
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`joint venture existed, nor could plaintiff show any existence of an oral contract. Id. at 135.
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`The court then observed,
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`Nor can plaintiff show an implied joint venture agreement. Although plaintiff
`presented several facts consistent with an implied agreement, it is
`inappropriate for a court to imply a joint venture where, as here, it is evident
`that there is a different business form involved. “The existence of a different
`type of express contract is in itself inconsistent with a claimed relationship of
`a joint venture by implication.” Jeff–Cole Quarries, Inc. v. Bell, 454 S.W.2d
`5, 16 (Mo. 1970). This principle dictates that the unequivocal existence of a
`definite business form is the most reliable expression of the relationship
`among the parties. In this case, the unequivocal existence of the corporate
`form of SCC precludes plaintiff from demonstrating the joint venture by
`implication.
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`Rosenfeld, 895 S.W.2d at 135. The Ritter-Rosenfeld rule appears to be, then, simply that
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`an “unequivocal existence of a definite business form is the most reliable expression of the
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`relationship.” Id. However, Rosenfeld goes on to say “that it is possible for a corporation to
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`exist as an arm of a joint venture. However, courts will not imply such arrangements.” Id.
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`(emphasis in original). Rosenfeld’s pronouncement that courts will not imply corporate
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`joint ventures cites Denny v. Guyton, 40 S.W.2d 562, 569–70 (Mo. banc 1931), but Guyton
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`actually holds to the contrary.
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`The Missouri Supreme Court discussed the “recent origin” of joint venture at length
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`in the 1931 Guyton case. Id. at 570. The court noted that joint venture “need not be
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`express but may be implied in whole or in part from the conduct of the parties.” Id. at 571
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`(quoting 33 C.J. 847). “If a joint venture is proved, either by direct evidence of a mutual
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`agreement to that end or by proofs of facts and circumstances from which it is made to
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`appear that such enterprise was in fact entered into, the law fixes the rights of the parties.”
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`Id. (quoting 33 C.J. 848). In discussing “an abundance of case law on the subject,” Guyton
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`points out that joint venture “can arise only by contract or agreement between the
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`parties[,]…. But joint adventure may be established without any specific formal agreement
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`to enter into a joint enterprise; it may be implied or proven by facts and circumstance
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`showing such enterprise was in fact entered into.” Id. (citations omitted).
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`The Missouri Supreme Court further stated,
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`Bearing in mind that the existence of an agreement of joint adventure may
`also be inferred from the acts and conduct of the parties, we now turn to facts
`and circumstances in evidence some of which in the opinion of the trial
`judge, who alone had the advantage of seeing and hearing all the litigating
`parties except Wolcott on the witness stand, outweighed the denials of these
`three defendants and other evidence introduced in their behalf on this
`question. It has been well said by the Supreme Court of Oklahoma in O. K.
`Boiler & Welding Company et al. v. Minnetonka Lumber Company et al., 103
`Okl. 226, 229 P. 1045, 1047, 1048: “Whether a joint enterprise has been
`created or not may be determined from the apparent purposes and the acts
`and conduct of the parties who join in the undertaking. The acts and conduct
`of the parties engaged in the accomplishment of the apparent purposes may
`speak above the expressed declarations of the parties to the contrary.”
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`40 S.W.2d at 583 (emphasis added).
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`The court even added that “we are not favorably impressed with the argument that if
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`there had been an agreement of joint adventure, it would have been evidenced by a written
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`contract….” Id. at 585. The court concluded, “Upon a thorough study of the entire record,
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`we find from the evidence [the parties] engaged together under an oral agreement as joint
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`adventurers in the business of furnishing horses and mules to the British government[.]”
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`Id. at 586. This agreement of parties was apparently evidenced by both oral statements
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`among the parties and other facts and circumstances that together implied what was not
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`written (and which in fact conflicted with the stated corporate forms of the parties). Finally,
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`the court repeatedly acknowledged the importance of inferences from “acts and conducts,”
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`and it states nowhere that a joint venture cannot be implied among corporate entities. Id. at
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`583.
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`“A federal court must follow the announced state law … unless there are very
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`persuasive grounds for believing the state’s highest court would no longer adhere to it.”
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`See Williamson v. Hartford Life and Acc. Ins. Co., 716 F.3d 1151, 1154 (8th Cir. 2013).
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`This Court is thus bound to follow the law of the Supreme Court of Missouri in this case.
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`Id. Certainly, an express statement of corporate form is important evidence in a joint venture
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`analysis, but the written agreements do not end this Court’s inquiry. Indeed, a later
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`Missouri Supreme Court case—Jeff-Cole Quarries—was also relied upon by Rosenfeld and
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`involved a joint venture among individuals and “alter ego corporations.” Jeff-Cole
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`Quarries, 454 S.W.2d at 15-16. The court observed that “the controlling consideration
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`here is that the parties entered into a detailed contract” for construction of certain buildings.
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`Id. at 16. The court held that “there is no sufficient evidence that this contract did not
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`represent the intent of the parties. The existence of a different type of express contract is in
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`itself inconsistent” with an implied joint venture. Id. Nevertheless, consistent with Guyton,
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`the Jeff-Cole court went on to examine the circumstances of the transactions and whether
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`the parties had in fact entered into a contract of joint venture: “There certainly was no
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`evidence of an express agreement to create a joint venture,” the court stated; “the question
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`here is whether the evidence shows, by facts and circumstances, that one was in fact
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`created.” Id.
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`Recent authority further supports that an implied agreement is permitted. See
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`TooBaRoo, LLC v. Western Robidoux, Inc., 2020 WL 5637616, at *7, --- S.W.3d --- (Mo.
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`App. W.D. Sept. 22, 2020). TooBaRoo involved two businesses and stated that a joint
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`venture “arises only from contract, but the agreement may be established without formal
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`terms, and implied from circumstances that such an enterprise was in fact entered into.” Id.
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`In sum, other court of appeals opinions—Ritter and Rosenfeld in particular—rejecting the
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`possibility of an implied joint venture appear to misread Missouri Supreme Court
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`precedent. This Court thus rejects BASF’s argument that an express joint venture was
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`required as a matter of law under the circumstances. That said, this Court bears in mind
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`that “the unequivocal existence of a definite business form is the most reliable expression
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`of the relationship among the parties.” Rosenfeld, 895 S.W.2d at 135. And, further, the
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`“existence of a different type of express contract is in itself inconsistent with a claimed
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`relationship of a joint venture by implication.” Jeff–Cole Quarries, 454 S.W.2d at 16.
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`The evidence in this case is that Monsanto and nonparty BASF SE entered into the
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`2010 Umbrella Agreement, which formed an Alliance Management Team (“AMT”). The
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`AMT itself has no apparent corporate form, but, as will be explained, its purpose was
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`effectively to carry out a joint venture between BASF SE’s affiliate (defendant BASF
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`Corporation) and Monsanto. Later agreements (but not all of them) indeed disclaimed a
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`joint venture, but, plaintiff insists, the menagerie of agreements and course of conduct,
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`8
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`taken together form an implied joint venture. That is not antithetical to Jeff-Cole, Guyton,
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`Ritter, Rosenfeld, Rice, or any other Missouri authority. As explained at length in this
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`Court’s Memorandum and Order denying summary judgment, ultimately
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`“the question here is whether the evidence shows, by facts and
`circumstances, that [a joint venture] was in fact created.” Jeff-Cole Quarries,
`Inc., 454 S.W.2d at 16. “The required intent necessary to find a partnership
`existed is not the intent to form a partnership, but the intent to enter a
`relationship which in law constitutes a partnership.” Morley v. Square, Inc.,
`4:10CV2243 SNLJ, 2016 WL 1615676, at *7 (E.D. Mo. Apr. 22, 2016)
`(quoting Hillme v. Chastain, 75 S.W.3d 315, 317 (Mo. App. S.D. 2002))
`(internal quotation omitted).
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`[#288 at 12.] The Court next turns to the elements necessary to show a joint venture.
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`2.
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`Implied Agreement
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`As indicated, the elements necessary to show a joint venture are (1) “an express or
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`implied agreement among members of the association,” (2) “a common purpose to be
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`carried out by the members,” (3) “a community of pecuniary interest in that purpose,” and
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`(4) an “equal voice” among all members “in determining the direction of the enterprise.”
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`Ritter, 987 S.W.2d at 387. BASF insists that evidence at trial did not satisfy these
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`requirements.
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`BASF and Monsanto entered into multiple agreements pertaining to the
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`development and commercialization of their dicamba tolerant (“DT”) system. To
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`implement that system, the 2010 Umbrella Agreement mentioned above formed a joint
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`governing body called the Alliance Management Team (“AMT”) with equal representation
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`from both BASF entities and Monsanto and alternating chairmanship. Later, Monsanto and
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`BASF Corp., acting through the AMT, entered into a March 8, 2011 Dicamba Tolerance
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`System Agreement (“DTSA”), a June 9, 2014 Amended & Restated Dicamba Tolerance
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`System Agreement (“ARDTSA”), and an October 2014 Letter Agreement. On the issue of
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`9
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`joint control, this Court thoroughly considered these agreements and surrounding
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`circumstances as submitted in the parties’ summary judgment briefing and observed as
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`follows:
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`Some BASF documents also refer explicitly to the arrangement as a
`“joint venture.” A 2015 invoice from BASF to Monsanto, for example,
`sought $349,922.51 for “the Dicamba Joint Venture.” Other documents, such
`as a BASF presentation to the EPA and others stated that “BASF and
`Monsanto are engaged in a joint venture.”
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`Defendants say those statements are irrelevant and that the question of
`whether the ARDTSA creates a joint venture between BASF Corp. and
`Monsanto should be decided within the four corners of the contracts alone.
`To that end, defendants point out that the ARDTSA states that the parties
`intend to operate as independent contractors and disclaims any intent to
`create a partnership. Moreover, defendants argue that the ARDTSA’s merger
`clause states that it is the whole agreement with respect to subject matter and
`displaces other oral or written agreements.
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`Regardless of the ARDTSA’s disclaimer of a partnership or joint
`venture, as this Court has stated, “the question here is whether the evidence
`shows, by facts and circumstances, that one was in fact created.” Jeff-Cole
`Quarries, 454 S.W.2d at 16. “The required intent necessary to find a
`partnership existed is not the intent to form a partnership, but the intent to
`enter a relationship which in law constitutes a partnership.” Morley v.
`Square, Inc., 4:10CV2243 SNLJ, 2016 WL 1615676, at *7 (E.D. Mo. Apr.
`22, 2016) (quoting Hillme v. Chastain, 75 S.W.3d 315, 317 (Mo. App. S.D.
`2002)) (internal quotation omitted).
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`To further distance themselves as joint venturers, and dispel the
`allegations that there was joint control or “equal voice,” defendants
`characterize the ARDTSA as a “licensing and supply” agreement. Plaintiffs
`counter that the ARDTSA was in fact an amendment of a Project Agreement
`under the parties’ pre-existing Umbrella Agreement. Under the Umbrella
`Agreement, according to plaintiffs, the parties agreed to contribute assets,
`including intellectual property and know-how to the joint development and
`commercialization of agricultural products in areas including seed treatment
`and weed control. Defendants, though, contend that the Umbrella Agreement
`is irrelevant to this dispute because the DTSA and ARDTSA both contain
`merger clauses. However, the parties do not appear to dispute that BASF and
`Monsanto entered into many agreements pertaining to the DT project, and
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`that each agreement pertains to its own subject matter—that is, the project
`was complex and involved numerous stand-alone agreements, and some of
`those agreements refer to each other.
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`Under the DTSA, in addition to certain obligations to grant reciprocal
`licenses, share access to regulatory data, and supply materials (including
`dicamba herbicide and dicamba-tolerant seed), the parties agreed Monsanto
`would make DT Systems Payments to BASF, which they call “value share
`payments.” The DTSA also established joint working groups, through
`which Monsanto and BASF jointly pursued development, regulatory, and
`commercialization efforts pertaining to their DT System. Among other
`things, the Regulatory Working Group coordinated registration of herbicides
`for use in the DT system; the Development Working Group coordinated field
`trials and developed label recommendations and research studies; and the
`Commercialization Working Group evaluated operational considerations
`including forecasts for seed volume and chemistry volume, developed and
`coordinated a communications strategy, and developed and coordinated the
`commercial launch strategy.
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`On June 9, 2014, Monsanto and BASF entered into the ARDTSA.
`The ARDTSA contains all the same definitions as the DTSA for
`“Commercial Launch,” “DT System,” and “Losses.” The ARDTSA, like the
`DTSA, defines the DT System to include BASF’s Clarity, BASF’s “old
`dicamba” brand. The ARDTSA modifies the value share payments provided
`in the DTSA, basing them only on traited acres (“Traited Acres Payments”).
`Pursuant to their various agreements, Monsanto and BASF coordinated the
`strategy and schedule for commercialization of the dicamba tolerant cropping
`system—including DT seed and dicamba formulations—through the
`Commercialization Working Group, which in turn reported to the Alliance
`Management Team (“AMT”), which was established in the Umbrella
`Agreement. As discussed above, the AMT includes equal representation and
`alternating chairmanship. From March 2010 until the eve of the product
`launch, Monsanto and BASF continued to collaborate on and discuss aspects
`of the dicamba tolerant crop system at meetings of the AMT under the
`protocols set forth in the Umbrella Agreement. In total, there were at least 17
`meetings of the AMT in which the aspects of the dicamba tolerant crop
`system were discussed. Under these circumstances, plaintiffs have at least
`established a question of fact regarding joint control.
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`[#266 at 11-14.]
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`The evidence anticipated on summary judgment was indeed offered at trial.
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`Plaintiff’s evidence was ample and persuasive. The Umbrella Agreement in particular
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`provides convincing evidence that the AMT was structured to provide the parties with joint
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`control over the project. Then, the parties furthered their joint control through the DTSA
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`and ARDTSA and the creation of the various working groups.
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`BASF insists, though, that the various agreements show that the parties did not
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`intend for a joint venture to exist and in fact prohibited any agreement outside the confines
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`of those contracts. BASF’s lead negotiator testified that he did not intend to create a joint
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`venture with Monsanto. BASF further states plaintiffs cannot rely upon documents that
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`refer to a “joint venture” because, BASF says, they are passing references by low-level,
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`non-attorney employees with no material involvement with or knowledge of the operative
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`agreements.1
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`To be sure, the “intent of the parties is the primary factor for determining whether a
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`partnership exists.” Morley v. Square, Inc., 4:10CV2243 SNLJ, 2016 WL 1615676, at *7
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`(E.D. Mo. Apr. 22, 2016) (citation omitted); see also Grissum, 505 S.W.2d at 85. However,
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`“The required intent necessary to find a partnership existed is not the intent to form a
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`partnership, but the intent to enter a relationship which in law constitutes a partnership.” Id.
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`(quoting Hillme v. Chastain, 75 S.W.3d 315, 317 (Mo. App. S.D. 2002)) (internal
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`quotation omitted). The evidence at trial satisfies this standard and goes well beyond the
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`“low-level” employee references BASF cites. Again, the Umbrella Agreement and related
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`1 In that regard, despite the disclaimers in two agreements, some BASF documents
`refer explicitly to the arrangement as a “joint venture.” A 2015 invoice from BASF to
`Monsanto, for example, sought $349,922.51 for “the Dicamba Joint Venture.” Other
`documents, such as a BASF presentation to the EPA and others stated that “BASF and
`Monsanto are engaged in a joint venture.”
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`agreements, along with the actions of the AMT and workgroups, were ample evidence of
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`intent to form a joint venture. Evidence at trial included joint work plans listing the
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`parties’ extensive dicamba commercialization, regulatory, and development tasks, all
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`approved by equal vote of the Umbrella Agreement’s AMT. That AMT conducted at least
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`19 (not 17) meetings to coordinate the commercialization of the DT system. As this Court
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`has already noted, “the acts and conduct of the parties engaged in the accomplishment of
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`the apparent purposes may speak above the expressed declarations of the parties to the
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`contrary.” Guyton, 40 S.W.2d at 583 (quotation omitted). The jury reasonably found that
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`the defendants had intended what is in law a joint venture.
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`As for whether BASF and Monsanto shared a pecuniary interest, “participation in
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`profits and losses is the usual and perhaps most cogent test of the intention of the parties,
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`but this is not conclusive.” Grissum, 505 S.W.2d at 85. On the other hand, as this Court
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`has observed, the requirement of “shared losses” is not a strict one under Missouri law.
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`Morley, 2016 WL 1615676, at *8. Further, the losses need not be shared equally, and the
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`joint venturers can choose to make whatever arrangements they think are appropriate. Pigg
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`v. Bridges, 352 S.W.2d 28, 33 (Mo. banc 1961) (“There need not necessarily be an
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`agreement to share losses. There must be, however, some control over the subject matter
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`thereof or property engaged therein.”); see also Allison v. Dilsaver, 387 S.W.2d 206, 213
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`(Mo. App. Springfield Dist. 1965); 48A C.J.S. Joint Ventures § 14. Moreover, the focus on
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`“shared profits and losses” ignores that “profit” necessarily contemplates a “benefit [or]
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`advantage remaining after all costs, charges, and expenses have been deducted from
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`income.” Labor Discount Ctr., Inc. v. State Bank & Tr. Co. of Wellston, 526 S.W.2d 407,
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`424 (Mo. App. E.D. 1975). BASF agreed Monsanto would pay BASF “value share
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`payments” as a means of sharing profits “for every single acre” of dicamba-tolerant seed
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`planted from 2015 to the present. Evidence shows that those payments were in fact made.
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`In addition, Monsanto and BASF jointly agreed to share access to proprietary testing and
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`data for regulatory approval, share materials to enable testing and development, share in
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`the costs of dicamba residue testing, and make capital expenditures to fulfill their
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`respective obligations under the agreements. Certainly, the concept of “shared losses”
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`cannot be rigidly applied in the same way to every joint venture relationship, especially
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`where, as here, the parties to the joint venture bring different assets and risks to the table.
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`See Allison, 387 S.W.2d at 213. Although BASF relies on Hatch v. V.P. Fair Found., Inc.,
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`990 S.W.2d 126, 138 (Mo. App. E.D. 1999), for the proposition that sharing in income is
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`not sharing in profits, that case involved an agreement in which one party “was not to share
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`in any of” the other’s losses. That court found that the record thus “did not support a
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`finding that the parties had a community of pecuniary interest.” Id. Here, though, BASF’s
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`focus on what it calls its “fixed” payments ignores that BASF also enjoyed additional
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`profits gained from its enhanced sales of dicamba herbicide and its licensing of that
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`herbicide for others to sell. In that regard, “the mode of participation in the fruits of the
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`undertaking may be left to agreement of the parties, and the benefits need not be of equal
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`value or kind.” 48A C.J.S. Joint Ventures § 14. The big picture, then, demonstrates that
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`Monsanto’s profits were to be derived from its sale of seeds and herbicide; BASF’s profits
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`were derived from the sale of its herbicides and licenses, with the value share payments to
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`BASF to even out their share. There is enough evidence here to support the jury’s finding
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`of a shared pecuniary interest.
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`Finally, BASF continues to insist that the proper standard of proof is “clear and
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`convincing evidence,” and not the “preponderance of the evidence” applied by the Court.
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`This Court thoroughly addressed this matter in its Memorandum and Order on BASF's
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`motion for reconsideration:
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`In support of the clear and convincing standard, BASF relies on Cutcliff v.
`Reuter, 889 F.3d 491, 495 (8th Cir. 2018), in which the Eighth Circuit stated
`that a partnership can be established “by implication…only …where there is
`clear, cogent and convincing evidence that the purported partners have made
`a definite and specific agreement.” Id. (quoting Morrison v. Labor & Indus.
`Rel. Comm’n, 23 S.W.3d 902, 909 (Mo. App. 2000)). This Court, however, is
`bound to follow the law of the Supreme Court of Missouri in this case. See
`Williamson v. Hartford Life and Acc. Ins. Co., 716 F.3d 1151, 1154 (8th Cir.
`2013) (“A federal court must follow the announced state law … unless there
`are very persuasive grounds for believing the state’s highest court would no
`longer adhere to it.”). BASF states in its reply that Grissum v. Reesman, 505
`S.W.2d 81, 86 (Mo. 1974), “applied the clear and convincing evidence
`standard to determine whether the plaintiff and her brother formed a
`partnership by implication.” (#323 at 3 (citing Grissum, 505 S.W.2d at 86.)
`But as this Court painstakingly set out in Morley v. Square, Inc.,
`4:10CV2243 SNLJ 2016 WL 1615676 (E.D. Mo. Apr. 22, 2016), although
`Grissum is the most recent Missouri Supreme Court pronouncement, the rule
`has been frequently misstated. Per Grissum, 505 S.W.2d at 86, the rule in
`Missouri is that “[a] preponderance of the evidence is necessary and
`sufficient to prove a joint adventure. The clear and convincing standard, then,
`is simply the exception to the general rule for [cases involving an oral
`contract to convey real estate or a resulting trust in real property].” Morley,
`2016 WL 1615676, at *7 (internal citation omitted). Grissum relied on
`Brooks v. Brooks, 208 S.W.3d 279 (Mo. 1948), which in turn relied on 48
`C.J.S. Joint Adventures, § 12 (1965), for the general rule that a
`“preponderance of the evidence is necessary and sufficient to prove a joint
`adventure.” Id. at 284. Not long after Grissum, an appellate court stated
`(relying on Grissum) that the agreement must be “proved by cogent,