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Law & Politics December/January 2002
A Civil Affair, Minnesota Style

About four and a half years ago, attorney Douglas Nill, who at the time was with the law firm of Lommen Nelson, became involved in a consumer fraud suit he filed on behalf of a group of farmers in North Dakota. The case has been a tar baby for Nill, who has devoted years of his life to its pursuit.

The complaint, made against BASF, a herbicide manufacturer in New Jersey, asserts that the company was selling the same product, Poast, under two different names: Poast, which was labeled for major crops such as corn and soybeans, and Poast Plus, a less-expensive herbicide labeled for minor crops such as sunflowers and sugar beets.

"Farmers read the labels," Nill points out, "and discovered that the two different products were the same." In terms of dollars, Poast cost about $32 more per gallon, or $4 more per acre, to use than Poast Plus. Nill pointed out that many farmers grow major and minor crops side by side and were using the Poast Plus on all crops to save money. A public relations representative for the company wrote articles that made reference to the fact that using products "off label" is a violation of the EPA, and that farmers can be prosecuted and their fields "red-flagged," or burned. However, while the EPA reviews products for safety to humans and the environment, it does not address how a company markets and prices its product. Te defendant, according to Nill, claimed that since the EPA approved their labels, they didn't see what the big deal was.

"Well it is a big deal," says Nill. "They're marketing the same product as two different products, and they're taking the regulatory processes, exploiting them, to the segment the American consumer market to exact premium prices from a certain segment of the market, and that is just plain wrong." Furthermore BASF knows what it is doing. In the North Dakota case, Nill and his associates, Hugh Plunkett and Rob Shequist, were made aware of memos exchanged between BASF and a national public relations company in which it was stated that "we run the risk of farmers discovering the truth."

"We think we have evidence of some pretty malicious facts," Nill says. Beyond self-condemning memos, representatives from BASF lied to the pesticide control board in North Dakota, claiming that the EPA required further testing of the herbicide. When contacted, the EPA responded that the court had been misinformed. "Lying to state officials to conceal a federal regulatory action is about as serious it gets," Nill says. A class action suit ensued and was settled in four months, before the discovery process was even completed. The suit has now become a national class action suit, including all states, based on the New Jersey Consumer Fraud Act.

Nill, who is now a solo practitioner, will next appear at trial for this case in Ada, Minn., before Judge Michael Kraker. The defendant's attorney is Brian O'Neill from Faegre & Benson.

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