Syngenta AG seeks reconsideration of jurisdiction ruling; Says Gilbert relied on bad information

Steve Korris Dec. 21, 2011, 6:00am



BENTON – Owners of Swiss holding company Syngenta AG claim U.S. District Judge Phil Gilbert relied on bad information from St. Louis lawyer Stephen Tillery in deciding to exercise jurisdiction over the company.

On Dec. 15, they asked Gilbert to reconsider his denial of their motion to dismiss a suit claiming weed killer atrazine contaminates water supplies.

"Many of the court's findings appear to be caused by mischaracterizations and unsupported generalizations made by plaintiffs," Peter Schutzel of Chicago wrote.

He challenged Gilbert's finding that Syngenta AG's global managers and leaders control day to day decisions of American subsidiary Syngenta Crop Protection.

"SAG does not have any global managers or leaders, because it does not have any employees," he wrote.

"Plaintiffs also misled the court by arguing that global managers exercise a high degree of control over SCPI's manufacturing of atrazine, even going so far as to negotiate sales contracts on behalf of SCPI," he wrote.

"To support this assertion, plaintiffs purposely confuse email communications involving contracts for atrazine with global customers outside this country with SCPI's manufacture and sale of atrazine in the United States," he wrote.

"The manner in which atrazine is allocated among global markets and supplied to global customers is of no consequence to SCPI, which markets and sells atrazine solely within the United States," he wrote.

He wrote that Gilbert made another mistake in finding that global or regional managers dictate decisions to SCPI's board by email.

"There are no such emails," he wrote.

"Nor were any entered into the record in this case," he wrote.

"While it is true that SCPI's board decisions are generally reached by written consent, its decisions are not predetermined and delivered via email from global managers or leaders outside of SCPI, and plaintiffs have presented no support for such a contention," he wrote.

He wrote that Syngenta AG produced 98 board resolutions from 2000 to 2010.

"Plaintiffs failed to cite a single email or other directive from SAG to the SCPI board recommending or otherwise requiring SCPI's board to take any one of those actions," he wrote.

"Plaintiffs claim that SCPI does not have a website for its business – a misstatement the court appears to have relied upon," he wrote.

"Plaintiffs make much of Peter Hertl's global title and responsibilities while employed by SCPI," he wrote.

"What plaintiffs neglected to mention, however, is that after assuming his position as head of global product safety, Hertl moved to Basel and is now employed by Syngenta Crop Protection AG," he wrote.

Tillery sued both companies last year, on behalf of public and private water suppliers in Illinois, Missouri, Indiana, Ohio, Kansas and Iowa.

He seeks an order declaring atrazine a defective product and requiring Syngenta to pay for its complete removal from raw water supplies.

Syngenta AG challenged Gilbert's jurisdiction, but Gilbert found that Syngenta Crop Protection's board makes no decisions independent of Syngenta AG.

He wrote that Syngenta AG would need to approve settlement of Tillery's suit, "because its value likely exceeds $60 million."

He wrote that "where a parent dominates the subsidiary, a court may have personal jurisdiction over a parent based on a subsidiary's contacts."

He wrote that the same is true where a parent does business through a subsidiary to shield itself from liability.

"SAG has organized its group of subsidiary companies, including SCPI, purposefully to limit the jurisdictions in which it is subject to court authority," Gilbert wrote.

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