United Agri-Products argues motion to dismiss Madison County atrazine class action

Amelia Flood May 26, 2010, 10:37am



A defendant in one of a series of proposed class actions over atrazine's alleged water contamination argued that it has nothing to do with selling the herbicide in Illinois and wants the case against it thrown out.

But plaintiffs, led by Holiday Shores Sanitary District, argued that defendant United Agri-Products Inc. (UAP) can't get around the Illinois case just by claiming its subsidiaries are the ones to sue.

Madison County Circuit Judge Barbara Crowder heard the arguments Wednesday on a 2005 motion to dismiss.

UAP and other makers and distributors of weed killers containing atrazine are fighting six class actions in Madison County as well as a federal class action filed by attorneys Stephen Tillery and Christine Moody.

At the hearing, UAP attorney Kurtis Reeg told Crowder his client should not have been sued at all.

"Holiday Shores' problem here is they sued the wrong defendant," Reeg said.

Reeg argued that his client is merely an administrative company that handles payroll, human resources and other daily management duties for its subsidiaries.

He pointed out that UAP does not do business in Illinois, doesn't have employees in the state and that it does not make or sell atrazine products directly.

He told Crowder the case against UAP should be dismissed for a lack of personal jurisdiction.

Tillery countered that UAP's own corporate representative, Mark Tostle, testified in a Feb. 26, 2010 deposition that he worked for UAP and its two subsidiaries, one of which directly deals with atrazine.

Tillery stressed the functions UAP handles for the subsidiaries, arguing they constituted 100 percent control needed for an Illinois court to have jurisdiction.

He told Crowder the courts generally "see right through" arguments like UAP's.

Tillery cited Tostle's deposition statements that although atrazine sales may have been the province of UAP subsidiaries that do sell in Illinois, the decision about the sales arrangements were made by UAP staff based in Colorado where the company is headquartered.

Crowder took the motion under advisement.

In the Madison County suits, Holiday Shores and seven other Illinois municipalities propose to lead a class of water providers alleging atrazine runs off farm fields and contaminates their water supplies.

Tillery's federal suit has nearly identical claims and is led by several water providers in neighboring states including Missouri and Kansas.

Although the U.S. Environmental Protection Agency has ruled atrazine is safe in drinking water up to 3 parts per billion, the plaintiffs contend that smaller amounts can cause medical problems in human beings.

In the Madison County suits' first amended complaints, the plaintiffs dropped property damage claims.

The defendants had argued that property-related claims for co-plaintiffs Hillsboro, Mattoon, Fairfield, Litchfield, Flora, Carlinville and Mount Olive, should be spun off from the Holiday Shores suits and returned to their home counties for proceedings.

Crowder denied that move after hearing arguments in late February.

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