Ag Council Gets Briefed on NDAs and Dealing With Government

Stinson LLP hosted the Agricultural Business Council this month as it kicks-off the 2023 Luncheon Meeting agenda with the Annual Legal Update. Stinson partner Jim Selle moderated a panel of specialists delving into the intricacies of intellectual property, patent and trademark protection laws. The panel also discussed the legal climate surrounding litigation involving the EPA, FSA, and Department of Natural Resources.

Selle provided an overview of legal issues that are emerging as agriculture innovation develops. “A lot of money is going into technology,” he said. That has created a unique ‘supply chain’ of activity and players: 1) Inventors, 2) Borrowers, investors, 3) Contractors, manufacturers, suppliers, 4) Sellers, 5) Buyers, lessors, licensees.  

All these links in the chain call for extra agreements and limited or capped warranties. “It is getting complicated,” said Penny Slicer, a Stinson partner and registered patent attorney involved with patent, trademark and intellectual property protection. Her comments on non-compete and non-disclosure  agreements were timely, as the Federal Trade Commission has proposed a ban on non-disclosure agreements  that could outlaw terms in some 30 million contracts, pre-empting such laws in every state. A final ruling is some 18 months off. Inside the Beltway, odds are the proposal is unlikely to become law.

Bob Thompson, partner at Bryan Cave Leighton Paisner LLP, and Jean Paul Bradshaw II, partner at Lathrop GPM, shared experiences on “doing business with government.” Thompson explained that mistakes or even misrepresentations that might be the subject of a civil lawsuit in a private transaction, can in fact be a “federal case” when that representation is made to a federal agency under a penalty of perjury.   The difference is that if someone cuts corners or misrepresents something in a private setting, they get sued.    When you are dealing with the government, you get indicted instead.   Bradshaw noted that federal “prosecutors really don’t know what goes on, on a farm.” But they will try to make their case based on the premise that it “looks wrong.”

On the issue of clean water as it is defined and regulated in WOTUS, both presenters voiced their worries that EPA could actually prosecute violations against clean water statutes occurring through negligence as having occurred through criminal intent. On the positive side, they think the Biden Administration will not be as aggressive as the Obama Administration was on the matter. They also are concerned that many agencies regulating agriculture, waters and land are headed by advocacy groups rather than genuine, trained environmental scientists.