Results tagged “monsanto” from

Bayer-Monsanto Buyout: Dangerous Waste of $66B

finalsign.jpgPost the premerger notice and let the bells ring. German pharmaceutical and pesticide titan Bayer and controversial seed giant Monsanto have finally tied the knot for $66 billion, in a deal complete with a $2 billion breakup fee owed to Monsanto if the deal is disallowed by the authorities. Not only is this deal a blatant attempt to monopolize the agricultural industry; upon closer scrutiny, Bayer may have dramatically overestimated the value of their newest purchase.

This buyout will be highly advantageous for Monsanto, which has routinely defrauded the growers of its genetically modified seeds for decades by vastly overstating its protections under U.S. patent law. The corporation speciously claims that patents on its asexually created plants forbid farmers from saving and replanting second-generation seed produced by a GMO plant, an assertion that clearly contradicts the unequivocal text of 35 U.S.C., Chapter 15. By using this deception to force farmers to repurchase seed every year, Monsanto has collected millions of dollars in unlawful profits - but, however lucrative that practice may prove at present, there remains the distinct possibility that regulators could at some point curtail such cozenage. By walking away with a cushion of some $66 billion dollars and handing Bayer the responsibility for this precarious operation, Monsanto's executives have ensured that they are never held accountable for their illegal restraint of trade.

Because of those legal uncertainties, this acquisition could prove to be a mixed bag for Bayer. The recently passed "Dark Act" overruled more comprehensive state-by-state GMO labeling laws that required notices to be placed physically on grocery packages, instead allowing manufacturers to obscure this information by posting it on websites or providing phone numbers consumers must call to learn the truth about their foods. This poorly veiled boost to the agribusiness industry is expected to increase the prevalence of GMO crops by making avoidance nearly impossible, and therefore would render Monsanto a desirable purchase. However, Monsanto's duplicity regarding its patents could prove to be more of a burden than a boon to Bayer if its claims are ever disputed. In addition, in an entirely separate controversy, an ongoing Justice Department suit against both Monsanto and John Deere over a partial merger of their machinery divisions (orchestrated prior to this buyout) could result in substantial penalties. Taking all these things into consideration, it is unlikely that Monsanto's products are worth the massive investment Bayer has just made in the company.

No matter what the outcome for the entities involved, one thing is clear: this merger will have a decidedly negative effect on American farmers and consumers. The two largest GMO seed companies are now both foreign-based: the Monsanto brand will now be German-held, and primary competitor Syngenta was recently purchased by ChemChina, a state-owned Chinese chemical developer. This could complicate an eventual challenge to Monsanto's interpretation of the patent laws by embrangling regulators or a class of growers in a drawn-out fight over the legitimacy of US jurisdiction; see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), Asahi Metal Industry, Co., Ltd. v. Superior Court of California, 480 U.S. 102 (1987). In addition, the merger gives the new conglomerate unprecedented market power over the price of seed and the herbicides most GMO plants have been specifically engineered to withstand, costs that will further repress small farmers and will be passed on to the consumer through increases in the prices of basic necessities.

The premerger notification will soon be available for public comment, and it is imperative that anyone ever having grown staple crops, eaten corn, soy or sugar, or worn cotton clothing unite to stand up against this plainly wrongful attempt to restrain the free market. So speak now or forever hold your peace.

Update: Monsanto Agrees to Disagree, Basically

Monsanto has finally responded to the argument I shared with you a few weeks ago, which posits that their scheme of licensing agreements for their GMO seeds egregiously overstates the protections they enjoy under U.S. patent law and is therefore a fraudulent attempt to unlawfully restrain trade. Their cursory one-paragraph letter duly recognizes that their corporate policy differs from our plain reading of the relevant statutes, but seemingly does not bother to counter the contentions I set forth:

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Their continuing reliance on Bowman and J.E.M. to vindicate their practices, even though both are materially irrelevant to the current controversy, may imply that they believe this dispute too trivial to require their further attention -- or it may signal that those two inapplicable precedents are the only legal foundation for their shaky scheme. Either way, it appears that Monsanto and "Conscious Commitment" have reached an impasse.

Conscious Commitment: My Response to Monsanto's Mendacity

Earlier today, I posted Monsanto's response to a consumer complaint I filed with the Arkansas Attorney General's office, to report their routine practice of fraudulently overstating the protections they enjoy under United States patent law. Here is my reply to their arguments.

On July 29th, I received Monsanto Technologies, LLC's response to my consumer complaint, docketed #16-04415, alleging that Monsanto has engaged in a routine pattern and practice of misleading growers of its genetically modified, patented seeds as to the protections it enjoys under these patents. The gravamen of its answer appeared to be that Bowman v. Monsanto, 133 S.Ct. 1761 (2013), and J.E.M. Ag. Supply (dba Farm Advantage) v. Pioneer Hi-Bred, 534 U.S. 124 (2001), settled this matter by unilaterally granting Monsanto the right to prevent others from reproducing these patented seeds. However, even a cursory reading of those opinions reveals that those holdings have no significant relation to the controversy at hand, and Monsanto's entire contention therefore rests on obiter dicta and its own erroneously loose construction of the patent laws.


Monsanto Technology, LLC, is a corporation organized under the laws of the state of Missouri. Monsanto is engaged in the development, licensing, and conditional sale of genetically modified agricultural seeds in interstate commerce. The natural biological and chemical makeup of these seeds has been tampered with in several ways, primarily to increase resistance to insect pests and Monsanto-made herbicides, and these changes have been patented. Monsanto routinely compels growers of the seeds to sign a uniform Technology/Stewardship Agreement ("MT/SA," the full text of which is appended below). In the MT/SA, the farmer agrees (among other things) to limit his use of the seeds to a single planting, to use only Monsanto herbicides on his crops, to allow Monsanto unbridled access to his property and Internet records, to use only Monsanto-approved cotton gins, and not to conduct or allow any independent studies of the safety or properties of the genetically modified technology. The MT/SA does not mention the applicable patent statutes, and there is no indication that signers are made aware in any way of the content of those laws. Monsanto holds hundreds of these contracts, nationwide and in Arkansas.


Over the past decades, Monsanto has fabricated several new varieties of genetically modified seeds. These are initially produced by an asexual process known as genetic recombination, in which DNA segments responsible for certain characteristics are isolated from widely varying organisms. These exogenous genes are subsequently injected into the DNA of a common agricultural crop such as corn, soybeans, or cotton. Monsanto has attained several U.S. patents on these mutated organisms, and under color of those patents asserts that it retains the right to prohibit growers from saving and replanting seeds or beans descended from the modified plants.

However, the relevant federal statute does not unilaterally grant Monsanto power to impose these restrictions. 35 U.S.C. §161 conclusively indicates the manner in which the United States Congress intended to protect the inventors of asexually created plant varieties:

"Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title." (Emphasis supplied).

The position of this provision provides an important insight into how Congress envisioned asexually reproduced plants could be patented. Placement of a statute within a certain title or chapter of a federal law, though not necessarily dispositive, is a valid indicator of the legislature's intent in enacting certain measures and employing certain phrases. See Kansas v. Hendricks, 521 U.S. 346 (1997), Kellogg, Brown & Root v. United States ex rel. Carter, 575 U.S. ___ (2015). This law is located at the beginning of Chapter 15, which pertains to patents on asexually reproduced plants, indicating that the "conditions and requirements" imposed on holders of patents for these asexually reproduced plants are those contained in the sections immediately following in the same chapter. The relevant "condition and requirement" is found in 35 U.S.C. §163, which dictates that patents on these materials "shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States."

Monsanto contends that this chapter is inapplicable, since its patents are formally classified as "utility" patents and not "plant" patents. However, the plain text of §161 and §163 states that Congress intended all patents on plant varieties produced by asexual means to be issued within the parameters it unequivocally set up in this chapter. That unambiguous purpose, supported by decades of established case law, must not be frustrated by Monsanto's misplaced confidence - as evinced in its response to my initial complaint - that the mere denomination of its patents as "utility" patents completely immunizes it from the clearly enunciated will of the legislature. As the Supreme Court has continually held since 1819, "It would be dangerous in the extreme to infer... that a case for which the words of an instrument expressly provide, shall be exempted from its operation." Sturges v. Crowninshield, 4 Wheat. 122 (1819). There can be no question that the plants were asexually reproduced, and their nomenclature cannot be prioritized above their nature in an attempt to subvert the law.


Not only is Monsanto's crafty construction of this clear, concise statute a transparently deliberate misunderstanding designed to enlarge its profits while unlawfully curtailing traditional farming practices, it is blatantly inconsistent with accepted interpretation of American law. As Justice Brewer once wrote for a unanimous Court:

"The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator... No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute." United States v. Goldenberg, 168 U.S. 95 (1897)

That enduring dictate has been postulated in the past by almost every court, and reaffirmed consistently up to the present. In United States v. Public Utilities Comm'n, Justice Frankfurter noted that courts should not "extrapolate meaning from surmises and speculation and free-wheeling utterances, especially... in disregard of the terms in which Congress has chosen to express its purpose." 345 U.S. 295 (1953). The decision of Alexander v. Worthington conclusively held: "We are not at liberty to imagine an intent and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence." 5 Md. 485. Here as in Bidwell v. Whitaker, "In the statute before us, the language admits of but one construction. No doubt can arise as to its meaning. It must, therefore, be its own interpreter." 1 Mich. 469 (1850). Since 1874, it has been universally accepted that:

"The rule in pari materia does not, however, go to the extent of controlling the language of a statute by the supposed policy of previous enactments. Goodrich v. Russell, 42 N. Y. 177; nor can other statutes in pari materia be resorted to where the language of the one under consideration is plain and explicit. Ingalls v. Cole, 47 Me. 530." T. Sedgwick, Treatise on the Rules which Govern the Interpretation and Construction of Statutory and Constitutional Law 210 (2nd ed. 1874).

More recently, the Supreme Court reiterated: "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court... must give effect to the unambiguously expressed intent of Congress." Chevron v. National Resources Defense Council, 467 U.S. 837 (1984). Twenty-four years later, it reminded those interpreting a law to "Start, as always, with the language of the statute." Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662 (2008), see also Oneale v. Thornton, 6 Cranch 53 (1810). In Lynch v. Alworth-Stephens Co., it was said: "A "plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." 267 U.S. 364 (1925). And in Connecticut National Bank v. Germain, a unanimous Court famously set forth per Justice Thomas:

"In interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there... When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249 (1992)

This echoed the rule once articulated by Lord Tenterden: "We think it much the safer course to adhere to the words of the statute construed in their ordinary import, than to enter into any inquiry as to the supposed intention of the persons who framed it." The King v. The Inhabitants of Great Bentley, 10 Barn. & Cres. 520, see also Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U. S. 1 (1878), and Landreth Timber Co. v. Landreth, 471 U.S. 681 (1985). In Everett v. Wells, we find it again: "It is the duty of all courts to confine themselves to the words of the Legislature-- nothing adding thereto, nothing diminishing." 2 Scott N.C. 531, see also Waller v. Harris ("Words are to be taken in the natural and obvious sense, and not in a sense unnecessarily... enlarged." 20 Wend. 655). Just last year, it was ingeminated that "even the most formidable argument concerning the statute's purposes could not overcome the clarity of the statute's text." Klockner v. Solis, 568 U.S. ___ (2012), cited in King v. Burwell, 568 U.S. ___, ___ (2015). And in Pennington v. Coxe, Chief Justice Marshall set forth the governing rule in these univocal terms:

"That a law is the best expositor of itself... and that the details of one part may contain regulations restricting the extent of general expressions used in another part of the same act, are among those plain rules laid down by common sense for the exposition of statutes which have been uniformly acknowledged." 2 Cranch 346 (1804).

It is a long-standing principle that "where Congress includes particular language in one section of a statute but omits it in another... it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion," yet Monsanto's interpretation of the patent laws outright ignores their monosemous language. Keene Corp. v. United States, 508 U.S. 200 (1993), see also Russello v. United States, 464 U.S. 15 (1983). We must remember in this case that neither the judiciary nor Monsanto enjoys a "roving license... to disregard clear language simply on the view that... Congress 'must have intended' something broader." Michigan v. Bay Mills Indian Community, 572 U. S. ___ (2014). "As long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of a statute" - and it is therefore beyond the authority of any party involved here to question the wisdom of the statutory system Congress has established for the patenting of asexually reproduced plants, but it remains our obligation nevertheless to ensure that this system is obeyed as written. United States v. Ron Pair Enterprises, 489 U.S. 235 (1989). Similarly, in Wright v. Denn, Justice Story held that "the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of intention." 10 Wheat. 204 (1825). Nearly two centuries later the Court reaffirmed: "It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Roberts v. Sea-Land Servs., 132 S. Ct. 1350 (2012).

In United States v. Pulaski Co., it was held that "there is a strong presumption that the literal meaning is the true one, especially as against a construction that is not interpretation, but perversion." 243 U.S. 97 (1917). That statement seems equally applicable here. The pellucid provisions of 35 U.S.C., Chapter 15, show that the legislature clearly did not envision the near-absolute control over agricultural development now held by Monsanto. The chapter does not grant free rein to the holders of patents on asexually reproduced plants, a Congressional choice that was clearly intentional and must not be undermined. Instead, it strikes a carefully considered and delicate balance between agribusiness' incentives for new development and citizens' interest in ensuring that essential staple foods would not fall under the exclusive control of a handful of companies or inventors. The fact that Monsanto's patents are classified as "utility" patents cannot change the fact that their subject matter - asexually reproduced plants - are protected "subject to the conditions and requirements" set out in §163. The location of §161 and its transpicuous language both decisively testify to this.


7 U.S.C. §2402, part of the Plant Variety Protection Act of 1970 ("PVPA"), dictates that "The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety, or the successor in interest of the breeder, shall be entitled to plant variety protection for the variety." However, this provision does not pertain to the question at hand for two reasons.

Firstly, the Act only applies to "sexually reproduced" plants, those created by controlled cross-pollination or other techniques to promote desirable characteristics by natural procreation. This description clearly does not cover the complex, synthetic process of manually altering an organism's innate genetic structure. As in the patent laws, the evidence that the legislature intended this logical division is apparent in the words of §2402 itself.

In the context of §2402, "sexually reproduced or tuber propagated" is a highly specific phrase, and its removal would have no effect on the clarity or grammatical structure of the sentence. If its inclusion had been supererogatory, Congress would doubtlessly have removed it during its 1994 or 1996 revisions of the section (found at Pub. L. 103-349 and Pub. L. 104-127, respectively). Instead, it made minor linguistic changes to the section and slightly altered the filing requirements for tuber propagated plants. When these two amendments were passed, asexually reproduced, genetically modified organisms had already existed for years. If Congress had meant these to fall under the PVPA they could simply have deleted the phrase "sexually reproduced or tuber propagated" - or, alternatively, replaced the phrase sexually reproduced" with the phrase "seed" so that the revised section began, "The breeder of any seed or tuber propagated plant variety..." This would have provided Monsanto's asexually reproduced plants lawful PVPA protection. But the legislature chose not to make that change, and therefore the PVPA only offers benefits to "sexually reproduced" plants. Any other reading of these terms would render the word "sexually" in §2402 mere surplusage, and therefore should be rejected. As the Supreme Court stated in Connecticut National Bank v. Germain, "Courts should disfavor interpretations of statutes that render language superfluous." 503 U.S. 249 (1992) (see also Gustafson v. Alloyd Co., 513 U.S. 561 (1995)).

Secondly, even if the PVPA does protect Monsanto's creations to a limited extent, the provision of the MT/SA proscribing farmers from saving and replanting seed still vastly exceeds the PVPA's protections. The vast majority of the soybeans, corn and cotton grown on American farms is not produced for horticultural purposes, and therefore 7 U.S.C. §2543 states:

"It shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm of the person, or for sale as provided in this section. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement."

This unmistakeably protects the right of Monsanto's customers to continue the traditional propagation of ancient and basic cultivated crops. Yet under this framework of laws, Monsanto would retain its rights as the exclusive seller of seeds containing its genetic traits, and these rights do adequately further "the Progress of Science and the useful Arts" as outlined in the Constitution.


In its response to my complaint, Monsanto relies on J.E.M. Ag. Supply v. Pioneer Hi-Bred, 534 U.S. 124 (2001), and Bowman v. Monsanto, 133 S.Ct. 1761 (2013), to support its erroneous belief that it possesses unbridled power to use its patents to prevent its growers from saving and replanting seed. It contends that the core of this complaint is a res adjudicata, but in doing so it blatantly overstates the holding of those two relatively narrow cases. I respectfully submit that a pleading reliant on such irresponsibly loose construction be rejected by Arkansas, as reasonable examination of those opinions demands.

The ruling in J.E.M. does not deal with asexually reproduced plants at all and is clearly insufficient to judicially overrule the provisions of Congress in 35 U.S.C., Chapter 15. That case only establishes that "sexually reproduced plants" are intellectual property and are entitled to some patent benefits, and decides that the unauthorized resale of protected seed "for reproductive purposes" is unlawful. See 7 U.S.C. §2543, supra. Neither of those avouchments are at issue here, and therefore any reference to J.E.M. as though its words settled the contentions of this complaint is a manifest attempt to distract from the actual controversy.

Secondly, even though Monsanto raises Bowman as a defense of the MT/SA against any and all objections to the contract's validity, the patent exhaustion doctrine dealt with there has no bearing on this complaint. However, in its haste to apply this case to these unrelated circumstances, it appears to have wholly forgotten the hornbook rule that the judiciary can rule only on the questions brought properly before it. Neither Bowman nor the Federal Circuit ever questioned the scope of Monsanto's patents in light of §161, and therefore the Court that ruled on his claims was procedurally bound to remain silent on that issue. See, e.g., Duignan v. United States, 274 U. S. 195 (1927); California v. San Pablo & Tulare R. Co, 149 U.S. 308 (1893); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Lovasco, 431 U. S. 783 (1977); Little v. Bowers, 134 U.S. 547 (1890); Ashwander v. TVA, 297 U.S. 288 (1936); Wood-Paper Co. v. Heft, 8 Wall. 333 (1868); United States v. Ortiz, 422 U. S. 891, 898 (1975); or even Monsanto's own contentions in Organic Seed Growers and Trade Ass'n v. Monsanto, 718 F.3d 1350 (2013). Favorable court decisions, even those issued from our nation's highest tribunal, have never been treated as blanket commendations or condonations of all the operations and practices of any corporation. I see no reason why their invocation for that purpose should begin now.


In §4(f)-(i) of the MT/SA, all growers of Monsanto seeds must agree:

"f. To use Seed containing Monsanto Technologies solely for a single planting of a commercial crop, except in the case of Genuity® Roundup Ready® Alfalfa where a single planting may be used for multiple cuttings.

g. Not to save or clean any crop produced from Seed for planting, not to supply Seed produced from Seed to anyone for planting, not to plant Seed for production other than for Monsanto or a Monsanto licensed seed company under a seed production contract.

h. Not to transfer any Seed containing patented Monsanto Technologies to any other person or entity for planting.

i. To plant and/or clean Seed for Seed production, if and only if, Grower has entered into a valid, written Seed production agreement with a Seed company that is licensed by Monsanto to produce Seed. Grower must either physically deliver to that licensed Seed Company or must sell for non-seed purposes or use for non-seed purposes all of the Seed produced pursuant to a Seed production agreement." MT/SA at 1.

These terms are grounded in the assertion found in section 5(b) of the MT/SA, infra, that "Monsanto Technologies are protected under U.S. patent law." However, Monsanto's extraordinarily loose construction of these patent laws is plainly repugnant to their actual meaning. This deceptive statement appears highly likely to mislead growers as to the rights they actually retain under the vaguely invoked laws, and defraud them into waiving liberties they are unaware they have.

The mere fact that the growers signed the MT/SA fails to validate its usurious terms. Any threadbare defense that Monsanto enjoyed an unrestrained freedom to contract with its growers has been contradicted by the Supreme Court in its decisions dating back to 1908 (Muller v. Oregon, 208 U.S. 412). In Norman v. Baltimore & Ohio R. Co., it opined that "Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them." 294 U.S. 290 (1935). In Nebbia v. New York (291 U.S. 502 (1934)), it wrote that "government cannot exist if the citizen may at will use his property to the detriment of his fellows," thereby sustaining Justice Holmes' 1923 view that

"Contract is not specifically mentioned in the text we have to construe. It is merely an example of doing what you want to do, embodied in the word 'liberty.' But pretty much all law consists of forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts." Adkins v. Children's Hospital, 261 U.S. 525.

In Chicago, Burlington & Quincy R. Co. v. McGuire, it held: "There is no absolute freedom to do as one wills or to contract as one chooses... Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." 219 U.S. 549 (1911). In 1943, it described American law as "a soil in which the laissez-faire concept or principle of noninterference has withered, at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." West Virginia v. Barnette, 319 U.S. 624. And in 1937, it enunciated per Chief Justice Hughes:

"The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people." West Coast Hotel Co. v. Parrish, 300 U.S. 379.

See also Holden v. Hardy, 169 U.S. 366, Crowley v. Christensen, 137 U.S. 89, Patterson v. Bark Eudora, 190 U.S. 169, Jacobson v. Massachusetts, 197 U.S. 11, Mondou v. New York, N.H. & H.R. R. Co, 223 U.S. 1, Knoxville Iron Co v. Harbison, 183 U.S. 13, Booth v. Illinois, 184 U.S. 425, and McLean v. Arkansas, 211 U.S. 539.

Not only is freedom of contract a relative concept, its invocation requires a valid contract at the very least - and the MT/SA fails to meet that standard. The requirement that assent to a binding agreement be an informed and rational choice is one of the oldest and basic tenets of contract law. A waiver of any protections or privileges by contract or otherwise, particularly those economic and social liberties secured by the Due Process Clause, must be made "voluntarily, knowingly and intelligently." Miranda v. Arizona, 384 U.S. 436 (1966), see also Culombe v. Connecticut, 367 U.S. 568 (1961). A promise or bargain made in the absence of this mutual educated voluntariness - frequently referred to as consensus ad idem or a "meeting of the minds" - is no contract at all.

This simple rule is not in any way negated by the rise of mass commercial contracts, such as the MT/SA, that corporations enter into with hundreds or even thousands of their consumers. If this new social reality has any effect on established common law at all, it only renders the requirement more essential, lest large entities like Monsanto abuse their inherent advantage in the bargaining process. As was asked in Henningsen v. Bloomfield Motors: "Where can the buyer go to negotiate for better protection? Such control and limitation of his remedies are inimical to the public welfare and, at the very least, call for great care by the courts to avoid injustice through application of common-law principles of freedom of contract." 32 N.J. 358 (1960). See also Siegelman v. Cunard White Star, 221 F.2d 189 (2nd Cir. 1955) ("Standardized contracts have been described as those in which one predominant party will dictate its law to an undetermined multiple rather than to an individual. They are said to resemble a law rather than a meeting of the minds").

These contracts are also deemed unenforceable by Arkansas law, which says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." Uniform Commercial Code, §2-302. The accompanying official commentary provides a comprehensive definition of "unconscionable:"

"This section is intended to allow the court to pass directly on the unconscionability of the contract or particular clause therein and make a conclusion of law as to its unconscionability. The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract."

The apposite statutes have remained unchanged since 1998, but Monsanto continues to peddle the MT/SA despite their unambiguous prohibition of such behavior.

The MT/SA clearly does not meet these requirements. In a society where criminal suspects must be diligently educated as to their rights to remain silent and to the advice of counsel - information most Americans already know - any expectation that farmers should be intimately acquainted with the terms of obscure legislation seems inconsistent and unreasonable. As Justice Jackson noted from the bench in Federal Crop Ins. Corp v. Merrill, "No farmer worth his salt would waste any time reading a dreary publication like the Federal Register." 332 U.S. 380 (1947). It is doubtful that most American growers are any more likely to be acquainted with the minutiae of the patent laws.


Most cases brought under the antitrust laws require arduous discovery and a flurry of subpoenas before a prima facie case of monopolization begins to emerge. However, the evidence of Monsanto's attempts to restrain trade is much more publicly available - simply enlarge the "fine print" of MT/SA from its actual size (at which the font of the contract is less than one-fifth of a centimeter high), and the conspiracy becomes clear.

In §4, the farmer agrees to all of the following conditions, without any ability to bargain or negotiate the terms of the pact:

"d. To acquire Seed containing these Monsanto Technologies only from a seed company with technology license(s) from Monsanto for the applicable Monsanto Technology(ies) or from a licensed company's dealer authorized to sell such licensed Seed.

e. To acquire Seed only from authorized seed companies (or their authorized dealers) with the applicable license(s)...

g. Not to save or clean any crop produced from Seed for planting, not to supply Seed produced from Seed to anyone for planting, not to plant Seed for production other than for Monsanto or a Monsanto licensed seed company under a seed production contract.

j. Grower may not plant and may not transfer to others for planting any Seed that the Grower has produced containing patented Monsanto Technologies for crop breeding, research, or generation of herbicide registration data. Grower may not conduct research on Grower's crop produced from Seed other than to make agronomic comparisons and conduct yield testing for Grower's own use. Monsanto makes available separate license agreements to academic institutions for research...

m. Grower agrees... to deliver Genuity® Roundup Ready® Flex Pima cotton to an Arizona, California, New Mexico, or Texas gin that is on Monsanto's approved list...

n. To provide Monsanto copies of any records, receipts, or other documents that could be relevant to Grower's performance of this Agreement... Such records shall be produced following Monsanto's actual (or attempted) oral communication with Grower and not later than seven (7) days after the date of a written request from Monsanto.

o. To identify and to allow Monsanto and its representatives access to land farmed by or at the direction of Grower (including refuge areas) and bins, wagons, or seed storage containers used or under the control or direction of Grower, for purposes of examining and taking samples of crops, crop residue or seeds located therein. Such inspection, examination or sampling shall be available to Monsanto and its representatives only after Monsanto delivers or mails to the Grower a written notice at least seven (7) days in advance, and Monsanto also has reasonably attempted to discuss the visits with the Grower in advance of the visit.

p. To allow Monsanto to obtain Grower's internet service provider ("ISP") records to validate Grower's electronic signature, if applicable. To use on crops containing Roundup Ready®, Roundup Ready® 2 Technology, or Roundup Ready® Flex only a labeled Roundup® agricultural herbicide or other authorized non-selective herbicide which could not be used in the absence of the Roundup Ready® gene."

In light of the actual meaning of 35 U.S.C. §161 and 7 U.S.C. §2402, these terms are a flagrant violation of antitrust law and an infringement of growers' rights to the due enjoyment of their own property. As was said in Federal Trade Commission v. Algowa, "Fair competition is not attained by balancing a gain in money against a misrepresentation of the thing supplied. The courts must set their faces against a conception of business standards so corrupting in its tendency." 291 U.S. 67 (1934). Therefore, Monsanto's routine fraud, harassment, and policy of prosecuting groundless lawsuits on the basis of its thinly disguised chicanery must be terminated.


Lastly, in the final paragraph of its answer, Monsanto disputed my standing to file the complaint at the heart of this matter. Their argument on this issue seemingly insists that, in order to properly make the appropriate law enforcement authorities - in this case, those charged with the responsibility of preserving Arkansas growers' economic and social rights - aware of wrongdoing within their jurisdiction, a complainant is required to be a victim of the fraud or crime. I submit that this supposition is so objectively unreasonable that it does not require further refutation. See, generally, 4 W. Blackstone, Commentaries 12, Carpenter v. State, 62 Ark. 286 (1896), State v. Wilson, 80 Vt. 249 (1907), Suell v. Derricott, 161 Ala. 259 (1909), State v. Biddle, 124 Atl. 804 (Del. 1923), 18 U.S.C. §4.


The unequivocal wording of 35 U.S.C. §161 admits of no doubt that Congress intended patents on asexually reproduced plants to be issued "subject to the conditions and requirements" found immediately thereunder. The MT/SA, though masquerading as an attempt to ensure the security of Monsanto's scientific innovations, is actually an exorbitant contract that significantly exceeds the protection afforded to the inventors of asexually produced plants under federal law, and therefore should be nullified under the Uniform Commercial Code. As then-Judge Cardozo said in 1928, courts should decide cases "not [on the basis of] what has been done under the statute, but what may reasonably be done under it." In re Richardson, 247 N.Y. 401. Grave injustice would inevitably result from allowing Monsanto to continue mongering their unconscionable "agreements," and therefore Arkansas must act promptly to prevent the perpetuation of Monsanto's patently false claims within its borders.

Conscious Commitment: Monsanto Has Spoken

Over the past months I have told you about my campaign to end Monsanto Technologies' unlawful monopoly on genetically modified agricultural seed, largely attained through its fraud as to the ambit of its United States patents. This objective has led me, at various stages, to enlightening calls with family farmers, conversations with former plaintiffs, consultations with First Amendment experts, correspondence with journalists, and complaints directed to federal and local antitrust and consumer protection officials. The authorities' response has varied widely - some states, like Missouri (where Monsanto is incorporated), disclaimed any jurisdiction to act over the matter - but Arkansas has acted to protect its growers from this deception, and recently referred my complaint to Monsanto.

Their response:

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I'll share my response - and the actual law of this controversy - with you shortly.

Conscious Commitment Officially Endorses...

The Republican convention is now in full swing, and the GOP is coming around to the idea of the Trump family. Hillary Clinton is now unavoidably the Democratic contender, and is vetting potential veeps as she prepares for her own party's powwow in a few days. Since the lines are now drawn and the general election draws nearer, it is the logical time for the Conscious Commitment campaign to announce its support for...


Here's why. Hillary Clinton might have revamped her rhetoric to include progressive platitudes about her allegiance with the consumer, but her record reveals her actual political priorities. Her prolonged consideration of Tom Vilsack - a notorious agribusiness lackey who has previously used his official capacity as Iowa Governor to bail out combined GMO/pharmaceutical corporations in the face of federal fines - highlights her readiness to allow the industry's deception to continue uncurbed. But her own actions in 2014, when she accepted $335,000 to speak to Monsanto's lobbying group and subsequently gave them their money's worth, signal her support for their lawless practices even more clearly:

Hillary Monsanto.jpgDonald Trump, though his brashness may have offended even the brazen biotech industry, has been no more courageous in opposing their fraud. During the primaries this characteristically puerile but undeniably anti-GMO tweet briefly appeared on his feed:

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He quickly backed down from even this trivial statement, deleting the post when Monsanto expressed its displeasure and blaming a hapless intern for its appearance. We would like to note that there would be nothing wrong with the post's removal if it had been taken down because of its inappropriate tone -- however, his willingness to repeatedly post similarly jejune messages after the incident signals that he was merely kowtowing to the crops cartel. 

Clearly, neither of these candidates has the fortitude to either turn down Monsanto's generous oratorical invitations or stand by their sentiments and staff in times of controversy, and therefore "Conscious Commitment" cannot endorse either in good conscience.

(Our blog expresses thanks to Food Democracy Now for the graphic with Hillary's event flyer)

Why Barratry Should be Legalized

Recently, there have been reports that members of several progressive grassroots organizations involved in campaigns against the pharmaceutical industry's fraud, such as the National Consumers League, are being investigated for attempted barratry. This is the crime of inciting a lawsuit by contacting a potential plaintiff who might not otherwise be inclined to sue, usually without any financial benefit for the guilty party. Most states have a statute prohibiting such activity to discourage ambulance-chasing and other questionable practices. However, in the past century these laws have been invoked almost solely as a tactic to suppress legitimate causes from the litigation connected to the Montgomery bus boycott to the campaign to hold tobacco companies accountable for false advertising. Not only is this selective enforcement unethical, the concept of barratry as a crime subverts some of the most elementary tenets of our justice system.

Firstly, this system provides a person who knows of such duplicity with the illegal choice to make affected citizens aware they are being deceived, or the more inequitable alternative of allowing an unlawful practice to continue untrammeled. Often in cases of widespread corporate wrongdoing, the facts are deliberately couched in esoteric phraseology which renders the affected consumers entirely unable to form a clear picture of their own rights and obligations. Therefore the continuance of square business dealings is to some extent reliant on the willingness of citizen activists to broadcast their discoveries to those impacted by chicanery, so that due action may be initiated.

Secondly, the courts' strict requirements for standing to sue are partially to blame for this quandary. The case of Organic Seed Growers and Trade Ass'n, et al. v. Monsanto, No. 13-303, is an illustration of this. The controversy arose from GMO seed company Monsanto's pattern of prosecuting organic farmers for alleged patent infringement because of cross-pollination from neighboring fields and other forms of inadvertent contamination. The Association and co-plaintiffs sought an injunction on behalf of their 300,000 growers seeking an injunction against this harassment, but the Federal Circuit dismissed the case because Monsanto had never threatened suit against or demanded payment from the Association itself. Not only did this decision hamper any relief in these particular circumstances, it ended one of the only unquestionably safe means to coordinate legal action. Since an organization's right to protect its interests in its own name were thus denied, such institutions are effectively compelled to reach out to individual members in order to organize court challenges - and thereby expose themselves to barratry charges.

Finally, the long-standing principle that neglect to report knowledge of a crime already (or about to be) committed also deepens the dilemma - especially where public officials have declined to act on a matter of grave public importance, such as the overreach of Monsanto or the pharmaceutical cartels. In many instances justice would never be served if injured parties were not made aware of their rights, leaving the unlucky fact-finder with the choice to become either the principal in an instance of barratry or an accessory after the fact in an instance of corporate chicanery. That action on these widespread issues is discouraged or even punished is deeply ironic. If the perpetrator of a common larceny were skillful enough to convince his victim, when his crime was discovered, that he was legally entitled to commit that felony - in such a case as that, any bystander who failed to intervene would doubtlessly find himself the recipient of universal censure for his disregard of basic justice. Cases of corporate fraud, wholesale denial of civil rights, or egregious injury are no different, and yet an observer who speaks out in those instances will be rewarded only with the fear of prosecution.

The prohibition on barratry will probably remain law for the foreseeable future, but simply because it is jurisprudence does not mean it is justice. In my opinion, something is fundamentally wrong with a judicial and legislative organization that has readily overturned or repealed policies such as the strict corporate liability doctrine or the Glass-Steagall banking responsibility law, but leaves this outdated provision on the books to the detriment of true social and economic equality

Update: Missouri's Inaction on Monsanto

Almost two months ago, we informed you of the duplicitous practices of Monsanto, Inc, which sells its genetically modified seeds to its growers on the condition that they sign a uniform contract in which Monsanto propagates the supposal that its patent protection extends farther than it does under federal patent laws. Once farmers sign this agreement, even though it is predicated on a fraudulent pretense, they are barred from saving and replanting seed grown from Monsanto crops - even though they have the right to do so under 35 U.S.C. §163.

Since then, I had reported Monsanto's misconduct to the Consumer Protection Division of the Missouri Attorney General's office, in the hope that they could put an end to this chicanery. Since Monsanto is incorporated in Missouri and actively selected that state in the "Choice of Law" provisions of their unconscionable contract, it follows that the Division has ample jurisdiction over this pattern and practice of misconduct. Yet, in responding to my complaint, they disavowed any authority to act on the matter:


I understand that the State's decision to pursue the issue or not is a matter of prosecutorial discretion -- I am simply sharing the rather interesting grounds they chose to justify their inaction.

Roberts (R-Monsanto) and Stabenow (D-Syngenta) Pass Deal

After years of dismissing activists' ongoing initiative to create consistent GMO labeling standards, the Senate has finally exercised its plenary power and approved a measure that would impose uniform requirements on the food industry.

There's only one little problem.

The proposed law, known as the Roberts-Stabenow bill, does not actually replace the comprehensive state laws it strikes down with any provision for the clear labeling of genetically altered ingredients directly on the package. Instead, it allows corporations to withhold this information by substituting a web address, telephone number or QR code - a form of barcode that can only be scanned and interpreted by certain cell phone apps - for the simple text advisory that already appears on many boxes due to state statutes. This impractical loophole is clearly designed to keep consumers from accessing the very information the Senate supposedly just recognized their right to, and as such is an unreasonable restriction on citizens' liberty to make free and informed personal choices. Even wealthy shoppers will face the considerable obstacle of having to consume minutes, data, and inordinate amounts of time to scan a box, find the correct page on a provided corporate website, or navigate an automated phone system for every article in their carts, when in many states they could formerly turn the package to read the desired statement.

The implications for lower- and middle-class consumers, whose freedom to choose is already hampered by the exorbitant pricing and limited availability of organic foods, are even worse. Many families simply cannot afford the unlimited cellular plans that such incessant telephone calls, usage of phone browsers, and scanning of QR codes would involve; and some do not possess the necessary technology at all. And the alternatives - remembering the corresponding URL for every purchase and visiting every appropriate website, or dialing a long list of numbers at home to listen to robotic messages - cannot possibly take place prior to purchasing the products in question, and therefore do not serve in any way to inform the customer's purchasing decision. This disparate impact is yet another reason that the compromise contained in Roberts-Stabenow has no practical positive effect on the shopping process, in reality.

Obviously, our elected officials have once more chosen duplicitous corporations like Monsanto over the well-being of their constituents. This Senatorial sellout can still be rejected by the House of Representatives, though, and it is imperative that they do so. Passage of the law would hinder any future attempts to close the technological loopholes, and place an unfair burden on the consumer in the simple endeavor to retain some authority over our own bodies.

Conscious Commitment: Help Us "Save Our Seeds"

Recently, we told you about the unlawful practices of Monsanto Technologies, which develops and conditionally sells GMO seeds using a standardized, unconscionable contract which prohibits farmers from saving and replanting the seed. Acting under color of this misrepresentation, they have maliciously prosecuted dozens of law-abiding growers, stifled the academic freedom to research their seeds, and obtained the Supreme Court's stamp of approval on a manifest fraud.

I have since launched an initiative to bring Monsanto and their executives to justice and hold them accountable for their falsehoods. I need your help to do this, however. Recognizing that, I created a We the People petition exhorting the Department of Justice to take action against these corporate criminals:

"We the People ask our DOJ to take antitrust action against Monsanto Technologies and preserve the rights of American farmers and consumers. Monsanto has created an unconscionable, illegal contract in which farmers agree not to save seed, ignoring the clear words of patent laws and the PVPA.

Restricting access to new technology in no way furthers agribusiness' supposed goal of feeding the world; informing citizens as to the contents of the laws in no way jeopardizes any legal purpose. Our officials serve those who shape law with soft money instead of firm stands, and scientific and economic freedom is trampled as a result. We are merely asking the enforcers of our laws to take a stand for us, to recognize the flagrant violations of the Sherman Act Monsanto and like companies commit daily."

Please sign our petition today - help me live up to this "Conscious Commitment" to protect economic freedom in this country.

Say No to GMO

cornfield.pngAmerican produce is saturated in GMOs, or genetically modified organisms. 88% of corn and 93% of soybeans grown in the country are labratory-engineered; eighty percent of processed foods contain genetically altered ingredients.

However, 19 European countries have banned the production of GMO crops or foods, and all E.U. member countries have strict labeling laws. It's much easier to avoid eating GMO food.

If our financial oligarchs get their way, however, all that is about to end.

The proposed TTIP (Transatlantic Trade and Investment Partnership) with the European Union is the TPP's twin. It's equally secretive and confusing. It grants the same immense authority to corporations. Europeans are scared of it for the same reasons we're scared of the TPP: lower regulations in new "trading partners" will result in strict guidelines being struck down by panels of corporate lawyers, since constitutional court systems are being thrown out the window around the world. (Not that our constitutional court system is always on our side. In the 2013 case Bowman v. Monsanto Co, a unanimous Supreme Court -- including the infamous former Monsanto lawyer, Clarence Thomas -- said that a 75-year-old Indiana farmer who replanted some of his seeds from the previous year's crop had violated the company's patent.)

corporate court.pngAs a result, while we Americans worry about food safety standards in Asian and other Pacific Rim countries, many Europeans are worrying about American produce. The side effects of consuming genetically modified food are disturbing, regardless of the "findings" of agribusinesses and their government allies. According to the Washington, D.C. based, nonprofit Center for Food Safety, toxicity, allergic reactions, antibiotic resistance, immuno-suppression, cancer and loss of nutrition are all proven results of meddling with the genome. A recent study by an Australian researcher compared the health of pigs fed genetically modified corn and soy versus those who were given a non-GMO diet, following them from weaning to slaughter (a 23-week period). Every single pig eating GMOs had health problems, ranging from cancer to reproductive defects to intestinal problems to stomach ulcers. The other pigs were fine. Of course, none of these results had been documented in tests conducted by agribusiness giants!

The lesson we should take from this is that Americans need to stop eating these poisons, instead of letting Monsanto, DuPont and co destroy the rest of the world as well. We need an outright ban, or at least GMO labeling laws (that don't require the use of smartphones or other technology to figure out what's in your food!). And we need to Say No to trade deals that will destroy the health of billions of people.

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