Background - Practices (Details)
Crop Protection
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Crowell & Moring’s agricultural product experience extends across the life cycle of crop protection products and the risk and litigation challenges they confront. With our strong presence in Washington, D.C., deep industry knowledge and participation, close working connections with multiple leading experts, and strong relationships with the U.S. Congress, federal agencies and government bodies worldwide, our clients benefit from a holistic approach to problem-solving that goes beyond traditional litigation and counseling strategies. As a result, our multidisciplinary mass torts, environment, and natural resources practice is well situated to represent clients in the full array of crop protection concerns, including in litigation, risk analysis and due diligence, crisis management, and product registration.

Litigation

Our litigation practice is built on the foundation of one of the leading federal (FIFRA, FFDCA) and state pesticide regulatory practices in the country. We utilize our deep knowledge of the registration and regulatory processes, EPA testing requirements, and Agency risk assessment and decision-making to shape complementary litigation strategies. We litigate a wide array of crop damage and health and environmental effect claims, including interfacing with EPA and state agencies when necessary.

Some of our more significant representative matters include:

Imprelis® Litigation and Claims Process
Crowell & Moring attorneys served as national coordinating and trial counsel in the nationwide Imprelis® crop damage litigation.

  • The client reached out to us when it first began to receive claims of tree damage associated with the application of its landscape product Imprelis® on campuses, lawns, and golf courses. The Imprelis® matter ultimately became a full-scale investigation and response.
    • Crowell & Moring attorneys organized a broad-ranging causation investigation by tree and phytotoxicity experts. That investigation led to our creation of a comprehensive claims process for evaluating and replacing damaged trees, and that claims process in turn shut down the class-action litigation by serving as the court’s vehicle for paying claims.
    • We led the EPA interface and negotiations effort and assisted with communications and the company’s internal investigations. 
    • We litigated the ensuing class actions with lead trial counsel.

Neonicotinoid and Cyantraniliprole Litigations
We represent three major companies in litigation regarding registration for neonicotinoid products alleged to be harming bees. 

  • We prepared experts for testimony and presented the science to the court, and continue to represent the company in ongoing proceedings. This representation is part of a much broader set of matters in which we defend registrations and products against challenges under the Endangered Species Act.
  • We were retained to defend their interests in federal court litigation challenging EPA’s registration of a new insecticide product. The registration-related litigation required the development of technical arguments pertaining to the impacts of the registered product on non-target populations.

Benlate® Crop Damage Litigation
Crowell & Moring attorneys served as national coordinating and trial counsel in the nationwide Benlate® crop damage litigation extending over a ten-year period.

  • We coordinated with regional trial firms, with our lawyers participating extensively in trial preparation, strategy, trials, and depositions.
  • We were deep in the science – we worked extensively with experts on crop damage issues; assisted the company in performing wide-ranging product field trials and other testing; reviewed and assessed EPA registration materials and extensive company field phytotoxicity testing; and developed expert exclusion strategies.
  • The cases involved significant overflow events which we co-managed, such as media and investor communications, EPA strategies and negotiations, and product cessation strategies.

Benlate® Health Effects Litigation
After a plaintiff jury verdict in a case alleging that Benlate® fungicide caused birth defects from farm-related exposures, we were retained as trial counsel in eight follow-on cases filed in West Virginia federal and Delaware state courts. The cases involved international discovery in New Zealand, England, Scotland, and Wales.

  • We litigated both sets of cases and obtained orders excluding plaintiffs’ causation and exposure experts under Daubert in both jurisdictions, followed by summary judgments. Both opinions were upheld on appeal. See Bourne v. E.I. DuPont de Nemours and Co., 189 F.Supp.2d 482 (W.D. Va. 2002), aff'd, 85 Fed. Appx. 964 (4th Cir. 2004); Bowen v. E.I. du Pont de Nemours and Co., 2005 WL 1952859 (Del. Super., June 23, 2005), aff'd, 906 A.2d 787(Del. Supr. 2006).
  • These cases required extensive work with FIFRA registration and testing materials along with a deep dive into the science behind the alleged claims. The Delaware win was premised in part on presentation of cutting-edge genetic testing that refuted the claimed link with Benlate®.

Agent Orange and Related Dioxin Litigation
Our attorneys have litigated and tried cases involving claimed exposure to substances that implicated the Agent Orange epidemiological literature and the associated dioxin and 2,4 D-alleged disease links.

Regulatory, Product Registration, and Data Protection

Our pesticide practice group provides broad-based, practical, industry-focused legal and regulatory counsel to leading multinational pesticide companies, trade associations, and testing consortia with operations and interests in the United States, Canada, Europe, and Asia. We counsel clients' crop protection units on matters of product regulatory registration and sale, and obtain patents and trademarks for our biotechnology clients through our intellectual property practice. We also have significant experience litigating “pesticide data compensation” claims under FIFRA and our attorneys have handled hundreds of claims over the past 25 years. We represent pesticide companies in response to EPA enforcement actions arising under FIFRA. We assist crop protection companies in making presentations before the International Agency for Research on Cancer (IARC) whose cancer classifications can lead to the filing of tort actions. We assist companies in response to proposals to list pesticides under California’s Proposition 65. We assist companies in response to allegations that their products are being used “off-label.”

Risk Analysis and Due Diligence

Due Diligence for Product Market Expansion. We assisted a client in identifying the risk associated with the marketing of new products containing a specific molecule intended for a variety of uses. We assisted closely in the process of revising the label and stewardship materials and advised the company on risk reduction approaches. Our attorneys assisted a crop protection company in assessing and developing resistance management tools to prolong the life of herbicides.

Stewardship. We have crafted product stewardship protocols for multiple clients and assessed and dealt with the litigation and EPA regulatory impact of stewardship principles and materials, such as drift and translocation reduction technologies. We have assisted crop protection companies in response to state efforts to restrict pesticides.

Sale of Crop Protection Business Risk Assessment. Crowell & Moring conducts merger and divestiture due diligence and advises on joint venture arrangements. We counsel joint ventures conducting product safety testing under FIFRA and TSCA on their formation, antitrust, tax issues, and pesticide regulatory compliance issues. We also conduct risk assessments and work with outside consults on valuation to properly price and indemnify risk in corporate transactions. In one instance, we worked closely with in-house and corporate counsel in negotiating the sale of a major pesticide product business unit to ensure that potential tort liability shifted with the product. Our role extended to drafting key indemnification and other language and participating in risk discussions with the purchaser.

Product Cessation and Recalls. We have advised clients on the process and risks associated with removing a product from the market and determining whether to utilize a full recall or lesser product cessation strategy. Some such engagements featured crop protection products subject to large-scale litigation, and our strategies extended to the implications and management of the registration process and public and company communications. We have assisted companies in response to EPA and state Stop Sale Use and Recall (SSURO) orders.

Crisis Management

Crowell & Moring manages crises for Fortune-listed companies and clients of all types and sizes, including in the agricultural arena. We have had numerous engagements involving crop protection and similar products focused on helping the client through the early days and ongoing efforts required to manage an evolving product or environmental crisis. Our work has extended to:

  • Conducting the initial investigation, review of studies and regulatory materials, and scientist interviews and evaluations to assess potential causation.
  • Managing the decisional process whether to pay claims or litigate.
  • Creating a claims process for an agricultural product sufficient to short-circuit class action litigation and reclaim customer confidence.
  • Conducting internal investigations where necessary to determine compliance with company policies.
  • Managing the EPA and other regulatory relationships as well as public messaging.
  • Developing overall litigation, expert, media and investor relations strategy, while defending the ensuing litigation itself, including through trial and on appeal.
  • Responding to EPA emergency suspension, suspension, and cancellation orders.

Representative crisis management engagements include:

  • Coordinating a six-month investigation effort addressing the Imprelis® herbicide tree damage claims to assess causation and structure the customer and court response to an influx of claims.
  • Responding to a threat of multi-state, home product fungicide birth defect litigation after the loss of a trial verdict in Florida, including preparing the defense of an anticipated 100 claims.
  • Developing and executing crisis response following a release of hazardous material at a national nuclear laboratory, assisting in the associated internal investigation and advised regarding multiple agency investigations, potential self-reporting obligations, and remedial measures.
  • Defending environmental justice litigation featuring an onslaught of news coverage, local town halls, and community activism, through both civil trial and administrative proceedings.
  • Developing strategy in response to FDA recall demands following discovery of salmonella in a client's manufacturing facility. Crowell guided the company through meetings with FDA officials, including with the Director of FDA's Center for Food Safety and Applied Nutrition, to arrive at a reasonable recall plan to ensure consumer safety.
  • Guiding a client's market withdrawal of food items distributed to franchise stores after discovery that a manufacturing failure may have dispersed foreign objects into the articles of food.

Additional Services and Capabilities

We represent clients before the EPA in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) cases and related brownfields and site remediation matters, including in hearings involving chlordane/heptachlor, dinoseb, and diazinon. We also help clients in identifying instances of potential non-compliance and defending against administrative investigations and enforcement actions.

We also have deep experience litigating cases brought by state attorneys general, including those alleging contaminants in groundwater – a growing concern for crop protection products.

Our experience is not confined to U.S. federal regulations. We regularly advise clients on state regulatory issues, including California's Proposition 65 and its Green Chemistry regulations. And our Brussels-based lawyers have significant experience advising clients on a wide range of EU regulations and legislation, including the EU REACH Regulation, the EU Classification, Labeling and Packaging Regulation, and EU Biocides and Pesticides legislation.