Syngenta Seeds, Inc. v. Bunge North America, Inc. (820 F. Supp. 2d 953, 2011)

United States District Court for the Northern District of Iowa 2011-09-26

Commerce and Trade The Public Health and Welfare Agriculture

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION..........................................................957

A. Factual Background...................................................957

1. The parties........................................................957

2. The transgenic corn at issue ........................................958

3. The parties’dispute................................................958

a. Domestic and foreign approval ..................................958

b. Bunge’s Policy.................................................959

c. The “major importer” dispute.............. 960

d. Bunge’s refusal to change its Policy .............................961

4. Positions of other elevator companies................................962

5. Syngenta’s evidence of irreparable harm.............................963

B. Procedural Background................................................964

1. Syngenta’s Complaint..............................................964

2. Syngenta’s Motion For A Preliminary Injunction.....................965

3. Syngenta’s Amended Complaint.....................................966

4. Additional briefing.................................................966

5. The evidentiary hearing............................................966

II. LEGAL ANALYSIS........................................................967

A. Standards For A Preliminary Injunction ................................967

B. Likelihood Of Success On The Merits....................................969

1. The USWA claim...................................................969

a. Arguments of the parties........................................969

b. Analysis.......................................................972

i. Purpose and provisions of the USWA........................972

ii. Courts to consider a private right of action under the

USWA..................................................974

iii. Congressional authorization of private rights of action .......975

iv. Whether § 247 creates a private right of action ..............977

v. Whether § 245(d) creates a private right of action for

violation of § 247........................................979

vi. Standing.................................................981

vii. The merits................................................981

2. The other warehousing claims.......................................982

3. Third-party beneficiary contract claim ..............................982

a. Arguments of the parties........................................982

b. Analysis.......................................................983

4. The Lanham Act claim.............................................984

a. Arguments of the parties........................................984

b. Analysis.......................................................985

C. Irreparable Harm To Syngenta .........................................987

1. Arguments of the parties............................................987

2. Analysis...........................................................987

D. Balance Of Equities ...................................................988

1. Arguments of the parties............................................989

2. Analysis...........................................................989

E. The Public Interest....................................................991

1. Arguments of the parties............................................991

2. Analysis...........................................................991

III. CONCLUSION............................................................992

Can a grain elevator company refuse to accept certain corn at its facilities, on the ground that the corn has not received approval from “major” export destinations, and post signs stating this, when the seed producer has received clearances from the United States and several foreign countries, but not from China or the European Union? The seed producer argues that the grain elevator company cannot do so, at least not without violating the United States Warehouse Act (USWA), 7 U.S.C. § 241 et seq., comparable provisions of state statutory and common law, and the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), and causing irreparable injury to the seed producer’s business and reputation. Thus, the seed producer seeks a preliminary injunction against the grain elevator company enjoining the grain elevator company’s refusal to accept the transgenic corn, while the seed producer litigates its USWA, Lanham Act, and state common-law and statutory claims. The grain elevator company counters that the seed producer has no likelihood of success on its claims, because there is no private right of action under the USWA; the seed producer has no' standing to assert such a claim if a private right of action does exist; all of the grain elevator company’s elevators are licensed pursuant to the USWA, which preempts state statutes and common law; and the grain elevator company is not a competitor of the seed producer, which defeats the seed producer’s Lanham Act claim. Moreover, the grain elevator company argues that it will be disproportionately harmed, if the court grants the preliminary injunctive relief requested.

I. INTRODUCTION

A. Factual Background

I am mindful of the general rule that “the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); accord United States Sec. and Exchange Comm’n v. Zahareas, 272 F.3d 1102, 1105 (8th Cir.2001) (“[W]e have long held that ‘findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding.’ ”) (quoting Patterson v. Masem, 774 F.2d 251, 254 (8th Cir.1985)); National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1103 n. 5 (8th Cir.1998) (quoting this principle from Camenisch)-, Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir.1995) (citing this statement from Camenisch as the “general rule” for findings of fact and conclusions of law in preliminary injunction rulings). Thus, all findings of fact and conclusions of law in this ruling are provisional.

1. The parties

Plaintiff Syngenta is a major agribusiness company, incorporated in Delaware, with its principal place of business in Minnetonka, Minnesota. Among other things, Syngenta is involved in the commercial seed business, developing, producing, and selling, through dealers and distributors or directly to growers, a wide range of agricultural products, including corn and soybean seed with useful traits developed with modern biotechnology. Syngenta brands include Garst, Golden Harvest, and Northrup King; some of its seed is also labeled under the names of other smaller seed companies; and some of its seed or seed traits are also licensed to other seed companies, even competitors, such as Pioneer.

Defendant Bunge North America is a New York corporation with its principal place of business in St. Louis, Missouri. Bunge operates approximately 71 grain and milling facilities and at least 66 grain warehouses (or elevators) in the central United States, including two facilities in Iowa. Most of Bunge’s facilities, like the two in Iowa, are located along the Mississippi River or its tributaries to facilitate barging of grain to Bunge’s export facility near New Orleans, Louisiana. Syngenta asserted that most of Bunge’s warehouses or elevators are licensed under the USWA, including Bunge’s elevators and receiving stations in Meekers Landing and McGregor, Iowa, but Bunge asserts that all of its warehouses are licensed under the USWA.

2. The transgenic corn at issue

After the investment of as much as twenty years of product research and development and hundreds of millions of dollars (not including advertising costs), Syngenta has developed a genetic trait called MIR162 (or VIP 3A), sold under the Agrisure Viptera™ trademark. The superior characteristic of Viptera corn is that it controls insects, such as the “multi-pest complex,” which Syngenta’s evidence showed causes American corn growers more than $1.1 billion annually in lost yield and grain quality. The reduction in insect damage to corn as a result of the Viptera genetic trait also reduces the development of fungus and mycotoxins in stored corn. Bunge agrees that Viptera has insecticidal properties and, indeed, points out that Viptera corn is considered a federally-registered pesticide that is licensed under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which Syngenta does not dispute.

Prior to the 2011-2012 crop year, Viptera corn was only grown in test plots and seed fields. However, Syngenta commercially launched Viptera corn seed in the United States for the 2011-2012 growing season when it opened its sales for the 2011 planting season in August of 2010. As part of its commercial launch of Viptera corn, Syngenta has offered farmers a “side-by-side program,” which encourages farmers to plant Viptera corn seed side-by-side with other seed in order to see how the Viptera trait’s protection affects yields. Syngenta asserts that it has received excellent feedback from growers and resellers, to the effect that Viptera outperforms other corn on a variety of important measures. For the 2010-2011 crop year, Syngenta delivered Viptera products to approximately 12,000 growers and projected a yield of 250 million bushels of Viptera corn. Prior to the parties’ dispute, Syngenta had projected that Viptera seed sales would exceed twenty percent of the United States corn seed market in future years.

3. The parties’dispute

The impetus for the present litigation is Bunge’s refusal to accept Viptera corn'at any of its facilities starting in the summer of 2011. Bunge asserts that its reasons for this decision involve the history of regulatory approval for Viptera in various import countries and, more specifically, the lack of such approval from China prior to the commercial release of Viptera. Syngenta asserts that Bunge is unfairly refusing to take Viptera corn for which all required and recommended import approvals have been obtained.

a. Domestic and foreign approval

Before selling Viptera for grain production in the United States, Syngenta was obligated to and did get approval from the USDA, the EPA, and the FDA. More specifically, the USDA and the EPA have determined that Viptera products containing MIR162 are safe for cultivation and use and that they present no risk to the environment, while the FDA found that Viptera-produced grain is safe for human consumption. In addition, consistent with the voluntary policy recommendations of the Biotechnology Industry Organization (BIO) and the National Corn Growers Association (NCGA), Syngenta sought and obtained import approvals for Viptera corn from Canada and Japan prior to commercialization. Syngenta actually exceeded these recommendations, by also obtaining import approval for the Viptera trait in Australia, Brazil, Mexico, New Zealand, the Philippines, Korea, Russia, and Taiwan, as well as cultivation approval in Canada, Argentina, and Brazil. Syngenta has not yet obtained import approval for Viptera corn from China or the European Union (EU), but it anticipates receiving approval from China by March 2012.

In September 2010, at about the time that Syngenta launched the commercial sale of Viptera seed, the North American Export Grain Association (NAEGA) urged BIO to “define the minimum markets in which regulatory requirements should be met prior to commercialization to include the United States, Canada, Japan, Mexico, The Philippines, China, Taiwan, and Korea for biotechnology products in commodity corn, soybeans, and canola in the United States and Canada,” and that the EU should be considered at least for soybeans and canola. Plaintiff’s Exhibit 31 (BNA 0002290) (emphasis added). BIO did not change the recommended list of countries in which regulatory approval for corn should be obtained, however, and Syngenta adhered to BIO’s existing recommendation concerning import approvals when it launched Viptera corn for commercial sale in the fall of 2010.

b. Bunge’s Policy

In the spring of 2010, when Syngenta had not yet received import approval for Viptera corn from Japan and Korea, and Syngenta was not yet selling Viptera seed to farmers, Bunge posted the following policy regarding Viptera corn at its facilities:

Please note that Bunge currently is unable to accept delivery of the following seed product for the 2010 growing season:

Agrisure Viptera MIR162 (Syngenta)

This seed has not received necessary approval from Japan or Korea, major export destinations for the U.S.

All Bunge facilities are integrated into the export market, which is why the terms of Bunge’s purchase contract states that Bunge will not accept grains or oilseeds containing transgenic events not approved for U.S. export markets. Bunge will accept a listed product once the seed is approved in Japan and Korea.

Please contact the facility manager or your grain marketing specialist if you have any question.

Defendant’s Exhibit F, April 16, 2010, Notice (BNA 0001538) (emphasis in the original).

Syngenta received import approval for Viptera corn from Japan in June 2010. Thereafter, on October 1, 2010, Bunge changed the sign above to remove any reference to a specific country and to add Plenish soybeans (a DuPont/Pioneer product) to the list of products that it would not accept. Defendant’s Exhibit F, October 1, 2010, Notice (BNA 0001539). On October 25, 2010, Syngenta received import approval for Viptera corn from Korea, and the following day, Bunge again changed its posted policy to remove any and all references to Viptera. Defendant’s Exhibit F, October 26, 2010, Notice (BNA 0001542). At that point, Bunge had no policy to reject Viptera corn. Indeed, Douglas A. McNeely, Bunge’s regional manager for the grain division in the Center Gulf region, testified that, from October 25, 2010, until July 5, 2011, if a farmer had asked, Bunge would have told the farmer that it would accept Viptera grain in the 2011-2012 growing season. However, there is no evidence that any farmers actually made such an inquiry of Bunge at any time between October 2010 and July 2011.

After planting time for the 2011-2012 crop year, Bunge again changed its policy about Viptera corn, even though Bunge knew what export approvals Syngenta had received for the Viptera trait. In a series of internal e-mails in May and June 2011, Defendant’s Exhibit I, Bunge officials considered making import approval by China a requirement for accepting corn. The exchange of e-mails was actually initiated by Diana Felner, Bunge’s director of government affairs, as a discussion of ways to try to encourage China to speed up its approval process, because of the concerns in the industry that technology providers were losing sales in the United States if the grain handling industry insisted on awaiting Chinese approval for corn. See Defendant’s Exhibit I (BNA 0001667). As of June 9, 2011, the parties to the e-mails had reached what Felner identified as a “decision point” about whether to accept corn that was not approved in China. The pressure for the decision was China’s sudden increase of corn imports, making it the seventh largest United States corn import market for the 2009-2010 crop year according to NCGA, with projections that it would move into the top five in 2011-2012, and China’s lack of approval for Syngenta’s Viptera trait. Defendant’s Exhibit I (BNA 0001689). There is also no dispute that, in the spring of 2011, Bunge had entered into several large contracts to export United States corn to China, for delivery between September 2011 and January 2012. At that time, Bunge anticipated that commercial Viptera corn yields in 2011 would be less than half what Syngenta now claims. Bunge decided not to accept Viptera com in 2011.

Therefore, on July 5, 2011, Bunge posted a new policy (Policy) regarding acceptance of Viptera corn. That Policy announced that Bunge would reject all Viptera-produced grain at all of Bunge’s locations, as follows:

Please note that Bunge currently is unable to accept delivery of corn/soybeans produced from the following seed products for the 2011/2012 growing season:

Agrisure® Viptera™ — MIR162 (Syngenta)

Plenish™ soybeans (DuPont/Pioneer)

These seed products have not received necessary international approval from major export destinations for the U.S. All Bunge facilities are integrated into the export market, which is why the terms of Bunge’s purchase contract states that Bunge will not accept grains and oil seeds containing transgenic events not approved for U.S. export markets.

Bunge will accept a listed product once the seeds receive approval from major export markets.

Plaintiffs Exhibit 14 (emphasis in original). As of the beginning of August 2011, 69 Bunge locations had posted the Policy on their website and at least 19 Bunge facilities in 7 states had posted signs stating the Policy.

c. The “major importer” dispute

Syngenta understood that Bunge’s Policy rejecting Viptera corn was based on the fact that the Viptera trait has not yet received approval for import in China. The parties dispute whether China is properly classified as a “major importer” for United States corn.

Neither the USDA, BIO, nor NCGA had identified China as a “major market” for United States corn exports prior to 2010, because China is the second largest com producer in the world (after the United States) and historically has had higher corn stocks or inventories than the United States at the end of a growing season. Also, exports to China have historically represented only about one-half of one percent of United States corn production and less than 3% of all United States corn exports. On the other hand, China’s United States corn purchases have recently increased dramatically and the industry as a whole, including the USDA, now generally considers China to be a significant market for United States corn that is and will be a major player in the corn market for years to come. The undisputed evidence at the preliminary injunction hearing was that China had suddenly emerged as the seventh largest importer of United States corn in the 2009-2010 year, and Bunge’s expert opined that China’s imports of United States corn were likely to continue to increase. There is also undisputed evidence that Bunge had sold millions of dollars worth of corn to China in the spring of 2011 for delivery between September 2011 and January 2012. There was no dispute at the preliminary injunction hearing that China has a “zero tolerance” policy pursuant to which it will reject corn deliveries that contain any percentage of corn with unapproved genetic traits. In contrast, evidence was presented that it is relatively common within the non-genetically modified corn markets to see a purity level of 98.5 percent, so 1.5 percent of genetically modified product would be tolerated in that system, and that the EU will accept low levels of unapproved biotechnology traits.

Syngenta argued that Bunge could feasibly and reasonably designate specific bins, silos, or flat storage at each location for Viptera corn, arrange for coordinated delivery of Viptera corn for immediate transportation to non-export users, such as ethanol plants, food processors, or feed mills, or even designate a handful of elevators that would not accept Viptera-produced grain, then use that grain for exports to China. On the other hand, the undisputed evidence, from Mr. McNeely, is that all of Bunge’s facilities are “integrated” into serving its export market, as all of its facilities either directly load corn onto barges to be taken to Bunge’s export facility near New Orleans, Louisiana, or truck or send corn by rail to such barge-loading facilities. Mr. McNeely testified, without contradiction, that fifty to sixty percent of corn received by Bunge facilities is ultimately exported; that corn not being exported is consumed at grind facilities, and some by-products are then exported; and that some corn is used domestically for poultry feed, wet milling, and other purposes; but that Bunge cannot designate corn as export or non-export when Bunge receives it. Moreover, Mr. McNeely testified, again without contradiction, that to develop a separate receiving system to “identity preserve” Viptera corn separate from other commingled commodity corn, from the dump pit to the barge, would cost $6 million to $8 million per facility. Based on this evidence, it is not commercially reasonable or feasible for Bunge to make such modifications to its facilities.

Bunge’s contracts with growers require growers to agree not to deliver corn containing unapproved events in export markets, and Bunge reminds growers of that commitment with appropriate signs at delivery locations. While Syngenta asserts that Bunge is not even testing incoming corn deliveries for the Viptera trait, Syngenta did not rebut Bunge’s evidence, from Mr. McNeely, that Bunge is not aware of any test for the Viptera trait that would meet China’s “zero tolerance” for unapproved genetic traits. As a practical matter, testing each load of corn presented to a Bunge facility would further slow the “truck line” of producers delivering grain, which Bunge had determined would displease producers. The unrebutted evidence at the hearing also indicated that, if a shipment of corn to China was rejected for contamination with an unapproved transgenic trait, such as Viptera, the redirection costs could be anywhere from $4 million to $20 million for that shipment.

d. Bunge’s refusal to change its Policy

Bunge notified Syngenta of its new Policy on July 6, 2011. Bunge also told Syngenta that Bunge understood that other receivers, including CGB and LouisDreyfus, were also rejecting Viptera, that it understood that Cargill and ADM were not accepting Viptera at their wet mills, and that it understood that some ethanol facilities also would not accept Viptera, because an exportable byproduct (distiller’s dry grain with solubles, or DDGS) could not be exported if it contained Viptera.

On August 11, 2011, Chuck Lee, who describes himself as the head of corn for Syngenta in North America, met with Douglas McNeely, Bailey Ragan, and Diana Felner of Bunge in St. Louis, Missouri, to ask if Bunge was willing to take down the signs reflecting its Policy, or to inform growers that Bunge would be willing to work with growers who planted Viptera corn, but Bunge refused both requests. Although Bunge’s representatives purportedly told Lee that they believed that “all the grain industry” was committed to rejecting Viptera-produced grain, Lee believed that they appeared alarmed when he told them that other grain elevators were accepting Vipteraproduced grain.

4. Positions of other elevator companies

Syngenta presented evidence that Car-gill, CHS, and other grain elevators in the same areas as Bunge’s elevators are taking Viptera-produced grain or have stated that they will work with farmers so that the warehouses can accept Viptera-produced grain at harvest or direct farmers to facilities that will accept Viptera corn. It is now undisputed that neither Cargill nor ADM will accept Viptera corn at any of their North American wet milling plants until Viptera corn receives regulatory approval from the EU. In September, Cargill posted the following sign:

Corn hybrids containing Syngenta’s Viptera1" trait (MIR 162) are not approved in all major U.S. export markets.

You must notify us in writing prior to delivery of any Viptera” corn, as we may not be able to accept this product.

Defendant’s Exhibit AE. Syngenta points out that ADM and Cargill, unlike Bunge, are working with growers who have grown Viptera corn to accommodate those growers with alternate delivery options. Unlike Bunge, however, Cargill operates feed lots, and has other domestic outlets for corn, so that it can efficiently redirect Viptera corn to domestic consumption only. The bid sheet for LouisDreyfus Commodities from August 19, 2011, indicates that “[t]he following corn events are not approved for all YC [yellow corn] and DDG [distiller’s dry grain] markets and will not be accepted for our purchase contracts: ... MIR162 [Viptera].” Defendant’s Exhibit V.

5. Syngenta’s evidence of irreparable harm

Syngenta presented evidence that its reputation and goodwill with the growers who use its products will be threatened if Bunge persists in its refusal to accept Viptera-produced grain. Although the 12,-000 growers of Viptera corn in 2011 are centered in Nebraska, Iowa, Illinois, and Missouri, at least some Viptera corn growers can be found in nearly every state, so the market for Viptera products is very broad across the United States. See Plaintiffs Exhibit 33 (2011 Agrisure Viptera Grower Locations). Nevertheless, neither party presented or professed to be aware of any instance in which a farmer was specifically turned away from a Bunge facility when the farmer attempted to deliver Viptera corn.

Nor was there any direct evidence that any Viptera farmers are confused or misled by Bunge’s posted Policy, although Syngenta asserts that farmers’ anger at Syngenta suggests that farmers have been misled into believing that Syngenta did something wrong in marketing Viptera before obtaining all import approvals. More specifically, Syngenta presented anecdotal evidence that Bunge’s rejection of Viptera corn has resulted in instances in which individual farmers, seed dealers, and local cooperatives have blamed Syngenta, not Bunge, for Bunge’s refusal to take their Viptera corn. One cooperative in Nebraska canceled an order with Syngenta for $1.5 to $2 million in crop protection products (such as herbicides and fungicides) because of its displeasure over the inability of its farmer/members to deliver Viptera com to various elevators. See Plaintiffs Exhibit 44. I also find that, since Bunge posted its Policy, Syngenta’s representatives have spent considerable time responding to questions from farmers and seed dealers concerning acceptance of Viptera corn at area elevators and have spent considerable time attempting to help farmers locate facilities that would accept Viptera corn. Syngenta presented unrebutted evidence that its call centers are open six days a week and that they now get between about 5 and 50 calls and about a half dozen e-mails per day from growers that are having difficulty locating outlets for Viptera corn. Some independent seed resellers, as well as farmers, are also angry and are questioning their purchases of Syngenta seeds and their ongoing relationships with Syngenta, in light of Bunge’s Policy of rejecting Viptera corn, and those resellers believe that their own reputations have been injured. See Plaintiffs Exhibit 43 (Letter from seed dealer).

I have little doubt that, in the highly competitive corn seed business, Bunge’s refusal to accept Viptera-produced grain will cause many farmers to question their decision to buy Viptera seed this year, and may cause them not to buy Syngenta products in future years. Syngenta asserts that the amount of lost sales arising from Bunge’s conduct is difficult to calculate, not least because of the other influences, such as weather, prices, and other factors, on a farmer’s decision about what seed to plant.

Bunge counters that any anger that farmers may feel about being misled about the acceptability of Viptera corn for export markets properly lies with Syngenta, because Syngenta marketed Viptera seed before obtaining regulatory approval from China or the EU. Bunge admitted that it has canceled approximately five growers’ contracts, because they had grown Viptera corn. Bunge presented evidence that it has at times assisted farmers with determining where they could deliver Viptera corn, but that it has no program to do so. Syngenta does not deny that it refused Bunge’s suggestion that Syngenta assist farmers with redirection costs, if they could not deliver Viptera corn to a Bunge facility.

I also find that, although Syngenta and Bunge were both in a position to recognize that sales of Viptera corn would not be possible to exporters of corn to China before the 2011 planting season, neither made any effort to inform growers of that specific fact at that time. At best, Bunge’s grower contracts informed growers, more generally, “Seller shall not deliver, and Buyer has the right to reject delivery of, Goods containing transgenic genes/traits that are not approved for sale in Japan, Mexico, The European Union and other U.S. export markets.” Defendant’s Exhibit A, Bunge Purchase Contract, General Terms and Conditions, ¶ 2. Similarly, Syngenta’s Stewardship Agreement provides, under Grower Responsibilities, inter alia, that “Grower agrees to ... [cjhannel grain produced from Seed to appropriate markets as necessary to prevent movement to markets where the grain has not yet received regulatory approval for import.” Defendant’s Exhibit AJ (Syngenta Seeds, Inc. Stewardship Agreement) (SYT00001338).

B. Procedural Background 1. Syngenta’s Complaint

Syngenta filed its Complaint (docket no. 1) against Bunge in this matter on August 22, 2011, asserting various claims arising from Bunge’s refusal to accept Viptera corn. Syngenta asserts subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1367 (supplemental jurisdiction for state-law claims), and 15 U.S.C. § 1121 (Lanham Act). Syngenta asserts that venue is proper here, pursuant to 28 U.S.C. § 1391(b), in that Bunge is a corporation subject to personal jurisdiction in Iowa and a substantial part of the events giving rise to the claims occurred in Iowa.

As to its claims, in Count I, Syngenta alleges a violation of the Lanham Act, 15 U.S.C. § 1125(a), on the ground that Bunge’s conduct constituted false advertising and/or promotion. Somewhat more specifically, this Count alleges that Bunge’s stated Policy, website, signs, and radio advertisements misrepresent the regulatory and export approvals that Agrisure Viptera products have in the major export markets for corn, Bunge’s ability to handle such products, and the destinations for grower-delivered corn at the majority of Bunge’s facilities. In Count II, Syngenta alleges a violation of the USWA, 7 U.S.C. § 241 et seq., and 7 C.F.R. § 735.9(a), based, inter alia, on its contention that Bunge has unfairly and unreasonably refused to accept Viptera corn at all Bunge facilities, notwithstanding that Viptera corn is of the kind, type, and quality customarily stored or handled in the area of grain elevators such as Bunge’s and that such corn is, absent other facts, in suitable condition for warehousing, and notwithstanding that Bunge has, at least as recently as last year, accepted corn at its facilities produced from other seed corn containing traits not approved in China. In Count III, Syngenta alleges violation of the common-law requirements to accept grain as a public utility or, alternatively, violation of Iowa Code § 203C.27. This claim asserts, again, that Bunge’s categorical refusal to receive Viptera-produced corn, even though dry and otherwise suitable for warehousing and storage, violates Iowa common-law and statutory duties.' In Count IV, Syngenta seeks declaratory judgment for federal and state warehousing violations declaring that Bunge is in violation of § 247 of the USWA, applicable state statutes, and the common law, and/or that its actions consistent with its Policy would be a violation of the USWA, applicable state statutes, and the common law. In Count V, Syngenta asserts a claim for intentional interference with contractual relationships, asserting that Bunge’s dissemination and enforcement of its Policy improperly interferes with Syngenta’s contracts with farmers for the purchase and use of Viptera corn seed, in that Bunge’s Policy and allegedly false statements are causing existing Syngenta customers to discontinue their contractual relationships with Syngenta with regard to Viptera corn seed. In Count VI, Syngenta asserts a claim of interference with prospective business advantage, on the ground that Bunge’s Policy and allegedly false statements have induced and will induce farmers not to enter into or to continue their relationships with Syngenta. In Count VII, Syngenta asserts a claim for business defamation, libel per se, or slander per se, again based on Bunge’s allegedly false statements. Finally, in Count VIII, Syngenta asserts a claim of violation of Minn. Stat. § 325D.44, concerning deceptive trade practices, and other states’ codifications of the Uniform Deceptive Trade Practices Act, also based on allegedly false statements by Bunge.

As relief on its claims, Syngenta seeks judgment in its favor; preliminary and permanent injunctive relief, restraining Bunge, its officers, agents, subsidiaries, servants, partners, employees, attorneys, and all others in active concert with them, from posting, publishing, or disseminating the Policy, or acting consistently with the position expressed in the Policy; awarding Syngenta damages, attorneys’ fees, costs, expenses, and interest incurred in this action; and such other relief as the court may deem just and proper.

2. Syngenta’s Motion For A Preliminary Injunction

On August 26, 2011, a few days after filing its Complaint, Syngenta filed the Motion For Preliminary Injunction (docket no. 5) now before me, seeking expedited relief, premised primarily on Syngenta’s asserted likelihood of success on the merits of its USWA claim, Iowa common-law and statutory warehousing claims, and Lanham Act claim, and asserting that Bunge’s actions are causing immediate and irreparable harm to Syngenta, in loss of reputation and goodwill with farmers and Syngenta’s product resellers. As relief, Syngenta seeks a preliminary injunction enjoining Bunge from posting and disseminating its Policy of rejecting Agrisure Viptera corn at all Bunge locations, from implementing or enforcing its Policy, from refusing to accept Agrisure Viptera corn based upon the existence of the MIR162 trait in such grain, and from disseminating false or misleading statements regarding Agrisure Viptera corn or the approval status of Agrisure Viptera corn.

On August 29, 2011, after consulting with the parties, I set Syngenta’s Motion For Preliminary Injunction for hearing on Monday, September 19, 2011. See Order (docket no. 7). I also directed that the parties’ briefs be filed on or before 5:00 p.m. on September 16, 2011. At the conclusion of a conference on discovery issues on September 6, 2011, with the parties’ agreement, I revised the briefing schedule to require Bunge to file its resistance brief on or before September 14, 2011, and to allow both parties to file supplemental briefs on or before September 16, 2011. See Hearing Minutes (docket no. 19). On September 15, 2011, Bunge filed its Response In Opposition To Syngenta Seeds, Inc.’s [sic] Motion For A Preliminary Injunction (docket no. 32). On the evening of September 16, 2011, Syngenta e-mailed to opposing counsel, the electronic case filing e-mail address for sealed documents, and me its Reply Brief In Support Of Motion For Preliminary Injunction with a Supplemental Appendix, which was ultimately filed as docket no. 40. Shortly before midnight on September 16, 2011, Bunge filed a Supplemental Brief (docket no. 35), responding to Syngenta’s Reply.

On September 16, 2011, I received an emailed courtesy copy of Syngenta’s Reply Brief while I was en route from Tucson, Arizona, where I had been serving as a visiting judge, to Sioux City. I responded with an e-mail to counsel for both parties suggesting that they advise me by e-mail of any authority finding or rejecting a private right of action based on language similar or nearly identical to the language of the specific provisions of the USWA on which they were relying, as they had so far cited no such authority.

3. Syngenta’s Amended Complaint

In the wee hours of the morning, on September 18, 2011, that is, the Sunday before the scheduled preliminary injunction hearing, Syngenta filed its First Amended Complaint (docket no. 36). The First Amended Complaint adds a new claim, and adds a second exhibit, but is otherwise essentially identical to the original Complaint. The new claim, in Count IX, is a claim of breach of contract as a third-party beneficiary of Bunge’s Licensing Agreement for Grain and Rice Warehouse Operators with the USDA Farm Service Agency (FSA). The new exhibit is the Licensing Agreement for Grain and Rice Warehouse Operators itself.

4. Additional briefing

Also on Sunday, September 18, 2011, Syngenta filed a Supplemental Brief In Support Of Motion For Preliminary Injunction (docket no. 37) asserting entirely new arguments that 7 U.S.C. § 245(d) authorizes a private right of action under the USWA with respect to any violation of any section of that Act, including 7 U.S.C. § 247(a), and that Syngenta is likely to succeed on the merits of its new third-party beneficiary breach-of-contract claim. Shortly after midnight on Monday, September 19, 2011, Bunge filed a Response In Opposition To Syngenta Seeds, Inc.’s [sic] Supplemental Brief And Response To This Court’s Request For Additional Authority (docket no. 38), challenging Syngenta’s likelihood of success on its new claim and disputing Syngenta’s new argument for a private right of action under the USWA.

5. The evidentiary hearing

At the evidentiary hearing on September 19, 2011, Syngenta was represented by David A. Tank of Dorsey & Whitney, L.L.P., in Des Moines, Iowa, and Daniel J. Brown, and Theresa M. Bevilacqua of Dorsey & Whitney, L.L.P., in Minneapolis, Minnesota. Bunge was represented by Christopher M. Hohn, John Reynolds Musgrave, and Matthew A. Braunel of Thompson Coburn, L.L.P., in St. Louis, Missouri, with local counsel John C. Gray of the Heidman Law Firm in Sioux City, Iowa.

Syngenta presented the “live” testimony of Chuck Lee and the parties agreed that Syngenta’s cross-examination of Douglas McNeely, when called as a witness for Bunge, would constitute and include Syngenta’s direct examination of that witness. In addition to Mr. McNeely’s testimony, Bunge presented the “live” testimony of Dr. Merrill Joseph Bateman, its expert witness on the status of China as a “major importer” of United States corn. The parties also submitted designated deposition testimony as part of the record for the evidentiary hearing. Syngenta offered twelve exhibits, all of which were admitted or admitted subject to Bunge’s objections. Bunge offered eleven exhibits, all of which were received in their entirety. Portions of the testimony, particularly portions of Mr. McNeely’s testimony, and certain exhibits, concerning specifics of Bunge’s corn contracts with China, were sealed.

This matter is now fully submitted.

I was impressed with the scope and quality of the briefing of the complex issues presented in the short time available between the filing of Syngenta’s Motion For Preliminary Injunction and the evidentiary hearing and the parties’ ability to marshal a wealth of documentary evidence and testimony (live and by deposition) for presentation at the evidentiary hearing. It is a credit to counsel on both sides that much was accomplished in a very short time.

II. LEGAL ANALYSIS

A. Standards For A Preliminary Injunction

The Supreme Court recently reiterated that “[a] preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689-690, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008)). As the Court explained,

In each case, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Production Co. [v. Gambell], 480 U.S. [531,] 542, 107 S.Ct. 1396[, 94 L.Ed.2d 542 (1987) ]. “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” [Weinberger v.] Romero-Barcelo, 456 U.S. [305,] at 312, 102 S.Ct. 1798[, 72 L.Ed.2d 91 (1982)]; see also Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

Winter, 555 U.S. at 24,129 S.Ct. 365.

As the Eighth Circuit Court of Appeals has explained,

When evaluating whether to issue a preliminary injunction, a district court should consider four factors: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc). A preliminary injunction is an extraordinary remedy and the burden of establishing the propriety of an injunction is on the movant. See Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.2003). We review the denial of a preliminary injunction for abuse of discretion. Id. An abuse of discretion may occur when the district court rests its decision on clearly erroneous factual findings or erroneous legal conclusions. TCF Nat'l Bank v. Bernanke, 643 F.3d 1158, 1162-63 (8th Cir.2011).

Roudachevski v. All-American Care Centers, Inc., 648 F.3d 701, 705-06 (8th Cir.2011). The “Dataphase factors,” quoted just above and generally relied upon in the Eighth Circuit, are consistent with the factors relevant to success on a motion for preliminary injunction as more recently articulated by the Supreme Court in Winter. See Sierra Club v. United States Army Corps of Engineers, 645 F.3d 978, 989 (8th Cir.2011). More specifically, as the Supreme Court explained in Winter, “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365. The relevant factors must be balanced: Specifically, the Court clarified in Winter that, where the defendant’s interests and the public interest outweighed the movant’s interests, as demonstrated by the movant’s showing of irreparable harm, it was unnecessary to consider whether the plaintiff had established a sufficient likelihood of success on the merits. See id. at 23-24, 129 S.Ct. 365; Sierra Club, 645 F.3d at 992-93.

Bunge contends that where, as here, the plaintiff seeks more than simply maintenance of the status quo, and instead seeks a “mandatory injunction” requiring some positive act by the defendant, courts should be extremely cautious and should impose a heightened standard for granting a preliminary injunction, involving a clear showing of entitlement to relief or that extreme or serious damage will result in the absence of the injunction, such that withholding preliminary injunctive relief could make a final determination on the merits futile. Syngenta counters that it is, indeed, attempting to reassert the status quo prior to Bunge’s change of policy to reject Viptera corn in July 2011, after Syngenta had received import approval from Japan and Korea, which Bunge had indicated in the fall of 2010 was the only impediment to Bunge’s acceptance of Viptera corn. Thus, in Syngenta’s view, it is not seeking a “mandatory” injunction, and no heightened standard is applicable.

The Eighth Circuit Court of Appeals has recognized that “ ‘[t]he primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full effective relief.’ ” Sanborn Mfg. Co. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 490 (8th Cir.1993) (quoting Rathmann Group v. Tanenbaum, 889 F.2d 787, 789-90 (8th Cir.1989), in turn quoting Ferry-Morse Seed Co. v. Food Com, Inc., 729 F.2d 589, 593 (8th Cir.1984)). Thus, the court observed that “[requiring [the defendant] to take affirmative action ... before the issue has been decided on the merits goes beyond the purpose of a preliminary injunction.” Id. (emphasis in the original). The court explained that, where a movant seeks on its motion for preliminary injunction substantially the same relief it would obtain after a trial on the merits, the movant’s burden is particularly “heavy.” Id. (citing Dakota Indus., Inc. v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir.1991)). I conclude that, even if Syngenta is only attempting to reestablish through a preliminary injunction the status quo prior to Bunge’s change in its Policy in July 2011, my disposition of Syngenta’s Motion For Preliminary Injunction would be the same. Thus, I need not decide if a heightened standard is required here.

I will consider each of the pertinent DataphasefWinter factors in turn, beginning with “likelihood of success on the merits,” the factor on which Bunge focuses its attention.

B. Likelihood Of Success On The Merits

“Success on the merits has been referred to as the most important of the four factors.” Roudachevski, 648 F.3d at 706. In Winter, the Court noted that, as to the “likelihood of success” factor, “the standard for preliminary injunctive relief requires a showing of a ‘likelihood of success on the merits rather than actual success’ as necessary for permanent relief.” Sierra Club, 645 F.3d at 993 (quoting Winter, 555 U.S. at 32, 129 S.Ct. 365, in turn quoting Amoco Prod. Co., 480 U.S. at 546 n. 12, 107 S.Ct. 1396). The Eighth Circuit Court of Appeals has noted that this “preferred wording” of the standard for success differs somewhat from the “once familiar” formulation in Dataphase requiring the plaintiff to show that, “at the very least,” the plaintiff had “established a fair ground for litigation.” Id. at 993. The question is not, however, whether the district court uses the preferred wording, but whether, in light of the evidence, the district court correctly concludes that the plaintiff is likely to succeed on at least some of its claims. Id. at 993-94.

Syngenta argues that it has sufficient likelihood of success on the merits of its USWA, Iowa common-law and statutory, Lanham Act, and third-party beneficiary contract claims to sustain the requested preliminary injunctive relief. Bunge disagrees. I will consider Syngenta’s likelihood of success on each of the identified claims in turn.

1. The USWA claim

a. Arguments of the parties

Syngenta initially gave short shrift to the question of whether or not the USWA authorizes a private right of action, arguing only that a regulation, 7 C.F.R. § 735.9(a), provides for a private right of action for violations of the USWA, including violations of 7 U.S.C. § 247(a). Syngenta focused, instead, on its argument that Bunge is violating the USWA, because Viptera-produced grain is no different from any other corn grown by United States farmers, in that it is of the kind, type, and quality customarily stored or handled in Iowa and all other areas containing Bunge elevators and that, absent other facts, it is in a suitable condition for warehousing — indeed, Syngenta contends that it is more suitable, because Viptera corn’s demonstrated insect control makes corn less susceptible to insect damage, which otherwise can increase molds and mycotoxins. Syngenta also argues that other elevators are accepting Viptera corn. Consequently, Syngenta argues that Bunge is treating growers in an unfair and unreasonable manner, and harming Syngenta in the process, by refusing Viptera corn. Syngenta argues that Bunge’s reliance on the lack of import approval from China is unreasonable, because China actually has only a very small share of projected United States corn exports, and Bunge’s Policy imposes unreasonable additional expenses on growers seeking a reasonably local elevator to which to deliver grain. Syngenta also argues that Bunge has the facilities to keep Viptera corn separate from other corn, to coordinate delivery of Viptera corn with shipments to domestic buyers, or to designate only a handful of elevators as Viptera-free to service export contracts to China. Syngenta also argues that Bunge’s Policy of refusing to accept Viptera corn is unfair and unreasonable, because it is not likely to achieve the desired result of Viptera-free corn stores, where there is a reasonable possibility of accidental delivery of Viptera corn, and Bunge does not even test corn at delivery or in storage for the Viptera trait.

Bunge counters with a much more extensive argument that the USWA does not create a private right of action for violations of 7 U.S.C. § 247(a). Bunge argues that the statute itself provides no private right of action, either expressly or impliedly, and, where the statute does not, a regulation cannot create such a right of action. Bunge points to the lack of any “rights-creating language” in the statute, which Bunge characterizes as concentrating on the conduct of the regulated warehouses, not on the “rights” of any class of persons. Even if the statute could be construed to create a private right of action, Bunge argues that Syngenta would not be in the class of persons to whom Congress intended to grant such rights, because Bunge asserts that there is no language in the USWA supporting the notion that Congress intended to confer rights on a biotechnology company that sold its product to farmers who deliver grain to regulated warehouses. Bunge also argues that the USWA already has an enforcement mechanism, granting the Secretary of Agriculture the exclusive powers of enforcement relevant here. Bunge points out that, where the USWA does create an express right of third-party actions, it is for breach of bonds in 7 U.S.C. § 245. In short, Bunge argues, the USWA is “regulatory” in character, leaving enforcement to the government. Bunge argues that USDA regulations, such as 7 C.F.R. § 735.9, identify only where a party could initiate an action, not who is authorized to bring one. Thus, Bunge argues that this regulation relates only to the limited right of private actions under 7 U.S.C. § 245, not actions for violation of 7 U.S.C. § 247. Bunge also argues that the regulation cannot create a private right of action not authorized by the statute. Thus, Bunge argues, Syngenta has no likelihood of success on its USWA claim, where no cause of action exists, and, as a consequence, Syngenta does not have standing to pursue its claim in Count II.

Even if there is a private right of action under the USWA, Bunge argues that Syngenta cannot satisfy the elements of § 247 claim. This is so, Bunge argues, because there is no custom or practice of accepting Viptera corn for a product first made available to farmers in the 2011-2012 crop year, and no ordinary and usual course of business to accept such grain. Bunge then argues that it cannot be argued that Viptera is no different from any other corn grown by United States farmers, where it has unique insecticidal properties, and its creation, development, and release were governed by extensive regulations. Bunge also asserts that other grain handlers have rejected Viptera corn. Bunge argues that its conduct was fair, reasonable, and nondiscriminatory, because Bunge sells corn to an international market, including China, which has not approved Viptera for import. Finally, Bunge asserts that, because its facilities are “integrated” into or “interconnected” with the export market, a ban on accepting Viptera corn at any of its facilities is the best way to avoid unintentional shipment of Viptera corn to China.

In reply, Syngenta asserts that the case on which Bunge relies as rejecting a private cause of action under the USWA turned on former § 270, which authorized “penal action” by the Secretary, but that provision was eliminated in 2000. Syngenta points out that, at the same time that provision was eliminated, Congress added the federal jurisdiction provision in § 255, which Syngenta argues clearly contemplates federal district court actions “brought under this chapter,” while 7 C.F.R. § 735.9 contemplates such actions by “a person,” not just the Secretary. Syngenta also asserts that cases interpreting statutes with a series of remedial steps by an enforcing agency are distinguishable, because they lack the federal court jurisdiction provision found in the USWA. Syngenta also notes that the Supreme Court has found a private right of action pursuant to other statutes, notwithstanding a provision granting an administrative agency “exclusive jurisdiction,” because such provisions did not limit the jurisdiction of the courts. Syngenta also argues that the authorization in the regulation for an action by “a person” cannot be read to be limited to producers or growers, because Congress has recognized the increasing development of biotechnologically altered grains. Thus, Syngenta argues that buyers and sellers in transactions involving commodities include biotechnology companies like Syngenta, who thus fall within the scope of “persons” authorized to pursue a private action under the USWA.

In its surreply, Bunge points out that the Supreme Court case cited by Syngenta as involving statutes addressing jurisdiction that purportedly suggested a private right of action actually involved a preexisting statutory right to a private right of action, so that an amendment by Congress specifically adding a jurisdictional provision demonstrated an intent to preserve a pre-existing right for a private action. Bunge also reiterates that there is no rights-creating language in the USWA as to § 247, and the regulation cannot authorize what the statute does not. Bunge also reiterates that, even if the statute did create a private right of action, Syngenta is not among the persons or entities that would have a right to enforce the USWA, because it is not a depositor, purchaser, or receipt holder.

In its eleventh-hour brief offering new arguments, filed nearly a month after its Complaint and Motion For Preliminary Injunction, Syngenta asserts that the scope of the private right of action authorized by § 245(d) is necessarily as broad as the Act itself: It includes a private right of action with respect to a violation of any section of the USWA, including § 247(a). Syngenta argues that § 245(d) contemplates a suit by any person for “breach of any obligation arising under this chapter [ie., the USWA] for which a bond or other financial assurance has been obtained as required by this section”; that the phrase “any obligation ... for which a bond or other financial assurance has been obtained as required by this section” is defined, in turn, by reference to § 245(a); that § 245(a) specifies that the bond or other financial assurance is provided “to secure the person’s performance of the activities ... licensed or approved [under the USWA]”; and that “performance of the activities ... licensed or approved [under the USWA]” (or secured obligations) include all of the statutory and regulatory obligations under the USWA, including those in § 247(a). Syngenta also argues that the Licensing Agreement contains requirements identical to the mandates of 7 U.S.C. § 247(a), so that Bunge’s refusal to accept Viptera corn not only violates 7 U.S.C. § 247(a), but also breaches § E-5(A) of the Licensing Agreement. Syngenta argues that it is an appropriate third-party beneficiary of this agreement.

In its response to Syngenta’s eleventh-hour arguments, Bunge argues that a statute conferring jurisdiction is not the same as a statute authorizing a private right of action. Moreover, Bunge argues that nothing in § 245(d) authorizes an action for equitable relief, such as a preliminary injunction. Even if § 245(d) creates a private right of action, Bunge argues that Syngenta is not a person “storing or seeking to store grain,” so that it lacks “prudential” standing to pursue a USWA claim. Bunge also argues that § 245(d) plainly allows third parties — such as depositors — to whom Bunge owes an obligation under a contract and to whom the bond secures an obligation to sue with respect to the bond, but it is not a blanket authorization for any and all private suits for violations of the USWA. Bunge argues that, because the USWA provides that statutory violations by regulated warehouses are to be enforced exclusively by the Secretary, congressional intent to preclude private actions is clear. The exception to the Secretary’s enforcement power for third-party actions with respect to the bond for breaches of obligations for which a bond or other financial assurance has been obtained, Bunge argues, secures Bunge’s obligation to the United States and its obligations to depositors under contracts with them. Bunge asserts that, if any person could sue under the bond for Bunge’s obligations to the United States, it would be an end run around the enforcement provisions allowing the Secretary to suspend a warehouse license or impose additional penalties, and make the limiting language for actions “with respect to the bond” superfluous. Bunge also disputes Syngenta’s assertion that it is a third-party beneficiary of Bunge’s License Agreement, because Syngenta is neither an intended third-party beneficiary of the License Agreement nor within an identifiable class of third-party beneficiaries, where there is no language suggesting that the License Agreement is intended for Syngenta’s direct benefit.

b. Analysis

i. Purpose and provisions of the USWA. One of the purposes of the United States Warehouse Act (USWA), 7 U.S.C. § 241 et seq., “is to protect producers and others who store their property in public warehouses.” Appley Bros. v. United States, 164 F.3d 1164, 1174 (8th Cir.1999). When the USWA was originally enacted in 1916, Congress recognized that grain warehousing was an area of traditional state concern, so that the federal regulation in this field was made subservient to state regulation. Heart of Am. Grain Inspection Serv., Inc. v. Missouri Dep’t of Agric., 123 F.3d 1098, 1103 (8th Cir.1997) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 222, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). However, “the Act was amended in 1931 and now provides that, although the Secretary of Agriculture has authority to cooperate with states in the enforcement of state warehouse laws, ‘the power, jurisdiction, and authority conferred upon the Secretary of Agriculture under this chapter shall be exclusive with respect to all persons securing a license hereunder so long as said license remains in effect.’ ” Id. (quoting 7 U.S.C. § 269 (1994)). The Eighth Circuit Court of Appeals noted that this language “portended preemption” of state warehousing laws, id., and, indeed, concluded that, while certain aspects of the grain warehousing industry are subject to state law pursuant to certain provisions of the USWA, grain weighing and supervision are not among them. Id. at 1104. Aspects of the grain warehousing industry not left subject to state law by the USWA, the court held, are preempted by the USWA. Id.

The provision of the USWA that is the basis for Syngenta’s cause of action provides as follows:

§ 247. Fair treatment in storage of agricultural products

(a) In general

Subject to the capacity of a warehouse, a warehouse operator shall deal, in a fair and reasonable manner, with persons storing, or seeking to store, an agricultural product in the warehouse if the agricultural product—

(1) is of the kind, type, and quality customarily stored or handled in the area in which the warehouse is located;

(2) is tendered to the warehouse operator in a suitable condition for warehousing; and

(3) is tendered in a manner that is consistent with