[News]

Fipronil Litigation Update: Three Years and Counting

GREENSBORO, N.C. — The ongoing litigation between two global chemical giants over the future of fipronil has entered its third year with each party declaring victory in individual skirmishes during the protracted legal proceedings, but neither company winning the war.

The latest development in this battle of attrition, which extends across multiple continents and numerous legal jurisdictions, came in late April when Makhteshim Agan of North America (MANA) and Control Solutions Inc. (CSI) notified the United States District Court for the Middle District of North Carolina that “due to a one-time human error” two lots of Taurus SC were not formulated with fipronil technical material made in accordance with MAI’s (Makhteshim Agan Group) proprietary production process referred to in Court documents as the “Currently Intended Process.”

Why is that significant? On March 20, MANA and CSI had just come off a dramatic victory at the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., which had affirmed an earlier ruling by U.S. District Judge William L. Osteen Jr., that said Taurus SC does not infringe on two of BASF’s patents, commonly referred to as the “perimeter use patents” (’010 and ’743).

“The Federal Circuit decision…finally puts to rest any question of whether the Taurus SC product infringes upon BASF or its patent holdings,” MAI and CSI said in a press release following the long-awaited decision.

“Throughout this case, MAI has maintained a corporate position and opinion that BASF’s claims have been without merit,” said Shaul Friedland, head of MAI’s Americas region. “MAI and CSI remained steadfast in their belief that the Court would deny the opposing side’s motions and appeals.”

On March 19, however, BASF filed a new patent infringement lawsuit against MANA, CSI and Do It Yourself Pest Control, Inc., in the U.S. District Court for the Northern District of Georgia, just 350 miles from the federal court in North Carolina that heard the earlier case. BASF claimed that products produced by MANA and CSI, and distributed by Do It Yourself Pest Control, violate a BASF manufacturing process patent (’945).

According to the company, BASF tested products sold by Do It Yourself Pest Control that were labeled as Taurus SC, “testing that confirmed that these products were created using a process that is protected by the ’945 BASF patent and that, pursuant to a court order issued on Oct. 27, 2010, MANA had agreed not to use in manufacturing of fipronil-based termiticides.”

At the time of the filing, Jan Buberl, director of specialty products, BASF North American Crop Protection, said, “Intellectual property is the cornerstone of our innovation-based marketplace. Improper activity that undermines patent protection laws is unfair to those who act properly and lawfully.”

Three days later, on March 22, MANA and CSI filed a contempt of court motion against BASF with the U.S. District Court for the Middle District of North Carolina, claiming the company violated an Oct. 27, 2010 Consent Judgment relating to the longstanding fipronil patent infringement case between the parties.

In a company press release dated March 27, MANA and CSI said “their process for manufacturing Fipronil has not changed since October 2010 and therefore still does not infringe any claim of BASF’s patent; therefore BASF’s claim has no merit.”

At the time, CSI President Mark Boyd said the latest patent infringement lawsuit from BASF was “just another attempt to confuse the pest management industry. Once again, BASF’s most recent filing comes at the onset of the U.S. termite control season — which is a critical period for CSI’s sales of Taurus SC to licensed pest control applicators,” he said. “Trying to reopen the (manufacturing) process patent case that Makhteshim won two years ago is just a last ditch effort to keep the confusion going. It seems ironic that they (BASF) filed the lawsuit upon learning that they had lost the EP/LI lawsuit (exterior perimeter/localized interior treatment). The rodeo continues!”

Approximately one month later, however, MANA and CSI notified the U.S. District Court for the Middle District of North Carolina that due to “one-time human error” two lots of Taurus SC (#23569 and #23795) were not formulated with fipronil technical material made in accordance with a process known as the “Currently Intended Process,” prompting BASF to claim its position had been “publicly vindicated,” according to Buberl.

“BASF continues to assert that Makhteshim, CSI and their customers have infringed and continue to infringe BASF’s manufacturing patent on fipronil-based termiticides/insecticides,” he said. “Makhteshim’s admissions go a long way toward proving BASF’s claims in Georgia that Makhteshim, CSI and their customers imported, sold or offered for sale large quantities of infringing fipronil product.”

MANA claims the infringing products don’t represent large quantities of termiticide/insecticide, but “a single run” of Taurus SC at Makhteshim Agan Group’s subsidiary in Columbia, South America, and the company is taking remedial steps to remove any remaining inventory of the production run in question from the marketplace.

“Once we became aware of the identity of the accused lot, we promptly began an investigation to determine which batches of fipronil technical materials were used in the lot in question,” said Michal Arlosoroff, general counsel, Makhteshim Agan Industries. “As a result of the investigation, we identified the source of the fipronil technical materials and discovered the formulation mix-up that resulted in its erroneous shipment to the U.S.

“The alternate fipronil material was in stock at the Colombian facility, where it had been formulated exclusively for use in product destined for non-U.S. markets,” she said. “This was a unique occurrence, the result of a one-time human error.”

MAI’s Friedland added, “We have already verified that neither CSI nor we have any stock of product from the two lots in question. We have also asked our distributors who may still have inventory of the two lots to immediately return that product to CSI.”

At press time, about 25 percent of the two lots had been returned to the company, according to Arlosoroff, “and we continue to determine if there is any remaining inventory that can be recalled. Our distributors and customers have been very appreciative of the way in which we quickly and openly communicated with them regarding this mistake. We have also made it clear that we will stand behind our customers in order to allow them to make reasonable business decisions without being harmed.”

Towards that end, the company says all future formulation of Taurus SC will be done at either the CSI facility in Texas, “which has been prepared to formulate Taurus since July 2012, or in Israel, at plants where no fipronil technical material is in its inventory, other than that made by the Currently Intended Process,” according to Arlosoroff.

Buberl said Makhteshim’s notification to the Court about the two lots of Taurus SC not formulated in the “Currently Intended Process” is an illustration of the company’s “failure to track material entering the U.S. or to insure that that material is entering the U.S. legally,” a charge MAI and CSI denies.

“MAI and CSI are committed to delivering effective and reliable products to customers, while ensuring a competitive marketplace. The fact is that, as soon as we confirmed that a limited amount of product was mistakenly formulated with the incorrect fipronil technical material and shipped to the U.S., we pro-actively notified the courts and made our findings public,” Arlosoroff said. “We believe that these actions are a testament to our commitment to transparency and truthfulness, and we are confident that our distributors recognize this.” In addition, she said, “Protocols to prevent this from happening again are already in place.”

Buberl, however, remains skeptical. He said Makhteshim’s admission that it began violating the Court’s order in March 2012 “is contrary to its numerous prior public statements that it only used a proprietary process for the manufacture of fipronil intended for use in the U.S.”

As a result, on May 1 and 2, BASF filed several motions with the U.S. District Court for the Middle District of North Carolina. BASF filed a motion asking the court to find Makhteshim in contempt for importing and selling product made by a non-conforming method. BASF filed a second motion asking the court to compel further discovery from Makhteshim and CSI.

As of press time, Makhteshim had not yet responded to these motions.

Visit www.pctonline.com for ongoing coverage regarding the future of fipronil. — Dan Moreland
 

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Endangered Species ‘Mega-Suit’ Dismissed

WASHINGTON — On April 22, Magistrate Judge Joseph Spero of the U.S. District Court Northern District of California dismissed the Center for Biological Diversity and Pesticide Action Network North America v. Environmental Protection Agency (EPA), Endangered Species Act “Mega-Suit.” (Visit http://bit.ly/10sUbYc to read the court document.)

The court’s decision has significant implications for the pest control industry, as this litigation involves more than 380 registered pesticides in the United States — including almost all rodenticides and termiticides.

“You would be hard-pressed to think of anything that could have happened to this industry that would have been more disruptive than if they had prevailed in that lawsuit,” said NPMA Executive Vice President Bob Rosenberg.

The “Mega-Suit” was filed in 2011 by the Center for Biological Diversity and Pesticide Action Network, which alleged that EPA had failed to take steps required by the Endangered Species Act (ESA) to protect more than 200 endangered species located in every state and territory in the United States, excepting Alaska, American Samoa, Guam and the Northern Marianas Islands.

In dismissing the suit, Judge Spero noted that the plaintiff failed to provide the minimum required information to support its claim that EPA did not meet its statutory obligations to consult with the U.S. Fish and Wildlife Service on certain pesticide decisions. The court stated, “Plaintiffs have not even pled the ‘general factual allegations’ giving rise to each individual ESA claim, nor have they asserted individual ESA claims.”

Rosenberg said the judge’s ruling affirms NPMA’s belief that, “EPA has for a very long time done a good job conducting ecological risk assessment and determining whether the products and their use have the potential to impact even non-target species that aren’t endangered — and certainly endangered species. At worse, what was happening was EPA maybe wasn’t talking as much as they ought to with the U.S. Fish and Wildlife Services and National Marine Fisheries. But that’s not to say they weren’t taking into account their impact on endangered species.”

Additional grounds for Spero’s dismissal of the lawsuit included that the plaintiffs lacked standing; were too vague; and that appellate courts are the appropriate venue for many of the counts.

Judge Spero allowed 30 days for the plaintiffs to file an amended lawsuit. The Center for Biological Diversity and Pesticide Action Network North America also have 60 days to appeal the decision. — Brad Harbison

ServiceMaster CEO Mullany Resigns; Replaced by Krenicki

MEMPHIS, Tenn. — The ServiceMaster Company announced that John Krenicki Jr. will serve as the company’s interim CEO while it searches for a successor to Hank Mullany, who resigned on April 12.

Krenicki joined the company earlier this year as chairman of ServiceMaster Global Holdings, the parent company of ServiceMaster, and a senior partner at the private equity firm Clayton, Dubilier & Rice. CD&R was among the equity sponsors that acquired ServiceMaster in 2007. The company said there’s no specific timetable for hiring a new CEO; Krenicki will serve in the dual roles of chairman and CEO while the search is conducted.

“We appreciate Hank’s contributions and wish him continued success in the future,” said Krenicki.

Prior to joining CD&R, Krenicki spent 29 years with GE, where he served as the company’s vice chairman, and president and chief executive officer of its $50 billion GE Energy division.

“We are excited about the future for ServiceMaster,” said Krenicki. “It starts with the more than 20,000 associates who passionately care about our brands and the 8 million customers we serve every year. We also have an experienced leadership team that’s motivated to deliver results.”

Mullany became Servicemaster CEO in March 2010, after serving as executive vice president of Walmart U.S. His tenure was marked by efforts to turn around ServiceMaster’s struggling TruGreen lawn care business. According to the Memphis Daily News, one of Mullany’s first actions was to follow through on the plans of his successor, Patrick Spainhour, to sell off the TruGreen LandCare commercial landscaping business. Mullany followed that by replacing the TruGreen head with Tom Brackett from the Terminix division. Mullany wanted Brackett to apply Terminix practices to give TruGreen more consistency and standardization. Brackett’s tenure at TruGreen was short-lived, however, as he resigned as TruGreen president after less than one year. Additional source: Memphis Daily News
 

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NPMA Names Marcia Duke Director of Regulatory Affairs

FAIRFAX, Va. — The National Pest Management Association in April announced the appointment of Marcia Duke, Ph.D., as director of regulatory affairs, a newly created position that will be responsible for the day-to-day management and execution of NPMA’s federal regulatory affairs program and collaborating with both NPMA’s technical and government affairs departments.

Duke received her doctorate in entomology from Texas A&M University, is a Board Certified Entomologist, and most recently served as a registration specialist for S.C. Johnson & Son, where she provided analysis, advice and expertise in registration-related matters to support the company’s immediate and strategic business plans. Prior to that, she was a regional technical specialist for Terminix International, where she provided scientific and professional leadership to resolve regulatory, quality assurance and technical issues.

“I have seen the significant strides that NPMA has made in its outreach programs, to include offering educational seminars to regulatory officials,” Duke said. “Regulators must sift through so much information as it relates to pest management issues that the outreach NPMA is doing will definitely have an impact as regulators continue to look to us as a meaningful resource.”

In addition to her technical experience, Duke also has had experience on Capitol Hill having served as a legislative assistant to Congressman Charlie Wilson.

“We are thrilled to have Marcia join our outstanding team,” said NPMA Executive Vice President Bob Rosenberg. “With her background in both policy and technical-related issues, she brings incredible strengths to the table, especially as we work harder to generate significant dialogue with regulators on the importance of pest management.”

Duke’s appointment follows closely on the heels of Gene Harrington’s promotion to vice president of government affairs for the association.

“Gene has been a key part of our success for nearly 20 years and we were thrilled to promote him to this position,” Rosenberg said. “His combined skills and determination are exactly what our industry needs.”

 

AP&G’s Kevin Keane Passes Away

ALLEN, Texas — Kevin Keane, vice president of Professional Sales at AP&G, died on April 1, at his home in Allen, Texas. He was 53.

Keane joined AP&G in 2004, as district sales manager for the Central, South Central and Southeast U.S. territories, and was promoted to vice president of professional sales, in 2010.

“Kevin was a larger-than-life figure who was full of energy and life,” said Jonathan Frisch, AP&G vice president. “As a great sales executive, he was fiercely competitive and goal-oriented — no challenge was too great and he would never quit until the job was done. Kevin had many great successes and accomplishments at AP&G/Catchmaster, but mostly we will remember him for making work fun, for his big heart, and for being a great friend. He will be sorely missed. “

Keane is survived by daughter Faith Keane, age 11, and son Jacob Keane, age 6, as well as two brothers and three sisters.

The family has set up a Kevin Keane Memorial Fund for the benefit of his two children. All donations will be deposited in a trust fund for them. Anyone who wishes to donate can do so by contacting his sister, Denise Baird at 1130 Wheatland Ave., Lancaster, PA 17603.
 

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Insects Limited Re-Launches Website

WESTFIELD, Ind. — Insects Limited announced its new online store, with new features including:

• Easier navigation
• Informative product descriptions
• Advanced search capabilities
• The ability to create a unique account
• Easy, fast and secure check-out
• The ability to track your order

Visit insectslimited.com for more information.
 

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EPA Changes Pyrethroid Label Requirements

WASHINGTON, D.C. — The United States Environmental Protection Agency has amended its label requirements for certain applications of pyrethroid pesticides.

The Pyrethroid Working Group noted that it is important for California pest control operators to know that the existing regulations from the California Department of Pesticide Regulation still apply and must be followed. In situations where the California regulations are more restrictive than the federal labels, applicators must comply with that state’s regulations.

The EPA changes were largely adopted to address a situation specific to states on the East Coast, where it is necessary to apply a broadcast spray to vertical surfaces to control certain pests.

The latest regulations can be found here: http://1.usa.gov/ZvlHLz.
 

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Russ Ives Retires from Copesan Board of Directors

MENOMONEE FALLS, Wis. — Copesan Services announced in April that H. Russell Ives, president/CEO of Rose Pest Solutions, a Copesan Partner headquartered in Troy, Mich., has retired from the Copesan Board of Directors after 24 years of service. During his tenure, Ives helped guide Copesan in a variety of capacities including chairman of the board, vice chair, treasurer and chair of Partner relations. He also has served as board liaison to various Copesan Committees, most recently the Copesan Technical Committee (CTC).

“Russ’ historical perspective, excellent business and financial acumen, strong, steady nature and absolute integrity make him a wonderful leader. Copesan has been blessed to benefit from his dedication on the board and in so many other ways,” said Deni Naumann, president. “It’s hard to imagine a board meeting without his insightful comments and positive approach, however we know we can count on his continuing support as a shareholder and resource to Copesan; and we look forward to working with him for many years to come.”

Alfie Treleven, chair-man of the board for Copesan, added, “Copesan is truly a better organization for having worked with Russ. He’s helped us grow in leaps and bounds and while we will miss his contributions on the board, we are also excited to see him embark on new adventures in our industry with organizations like PestSure and the National Pest Management Association (NPMA).”

Ives continues to lead Rose Pest Solutions as CEO/president, is president of pest management insurance provider PestSure and serves on the Leadership Board of NPMA as secretary.
 

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Bob Jackson Inducted into Indiana Pest Management Association’s Hall of Fame

WAYNEDALE, Ind. — Bob Jackson, owner of Jackson Pest Management, Waynedale, Ind., was inducted into the Indiana Pest Management Association Hall of Fame, during January’s 77th annual Purdue Pest Management Conference.

Jackson was recognized for outstanding contributions, education and assistance to Indiana pest management professionals, the structural pest management industry and continued service to the Indiana Pest Management Association.

Jackson was past president and board member of the IPMA and has operated Jackson Pest Management since 1995.

 

AMVAC Announces Joint Venture with TyraTech

NEWPORT BEACH, Calif. — American Vanguard Corporation announced that its wholly owned subsidiary AMVAC formed a new joint venture with TyraTech, a natural life science company. The partnership will help develop and commercialize pesticide products featuring TyraTech’s “Nature’s Technology.”

The joint venture will commercialize these pesticide products and technologies in the global consumer household and lawn and garden retail markets, the companies said. Additionally, it will develop and commercialize products and technologies in global commercial, institutional, professional, crop protection and seed treatment markets. Using TyraTech’s Extend Technology, the joint venture also will develop new combinations with synthetic compounds to both improve efficacy and environmental impact on a range of crops, which will give AMVAC access to range of new global market opportunities.

Under the terms of this agreement, TyraTech will retain all rights to use its technology in the Human and Animal Health markets together with certain other consumer markets. As part of this collaboration, AMVAC will have access to TyraTech’s patented screening platform that is utilized to identify synergistic combinations of natural compounds that display efficacy in controlling insects and managing parasites.

The venture will be jointly owned by AMVAC and TyraTech, with AMVAC owning majority interest. The new company will be led by TyraTech Vice President of Commercial Operations Shayne M. Wetherall, who will serve as CEO of the venture. The new company will be headquartered in the Research Triangle Park area of North Carolina, giving it direct access to TyraTech’s R&D, production and supply chain teams.

Eric Wintemute, chairman and CEO of American Vanguard said, “This joint venture collaboration represents an exciting growth opportunity for AMVAC. This important addition of technologies, products and capabilities complements AMVAC’s existing product offering in crop and non-crop sectors. We are excited to work with TyraTech, a company known for its lengthy commitment to R&D which has resulted in several state-of-the-art natural product lines.”
 

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J.T. Eaton Awards Industry Scholarships

TWINSBURG, Ohio — J.T. Eaton awarded two $2,000 scholarships to Purdue entomology students Jeff Trembacki and Susanna Sisk at the 77th annual Purdue Pest Management Conference.

“Giving back to the industry through education would make my late grandfather, Stanley Baker, proud,” said Dale Baker, vice president of J.T. Eaton. “He was a strong proponent for education in this industry, and is the reason why we continue to implement the Stanley Z. Baker Foundation today.”

J.T. Eaton’s Stanley Z. Baker Foundation works with a variety of industry projects, and the J.T. Eaton team said it is always interested in learning about new opportunities.