Jul 14, 2016
Second lawsuit targets UC strawberry program

For the second time in as many years, the University of California’s (UC) strawberry breeding program finds itself the subject of a lawsuit.

This time around, the lawsuit was filed by California Berry Cultivars (CBC), a private breeding company. CBC sued UC’s regents in early May, due to the “systematic demise of the UC Davis strawberry breeding program.” The suit listed claims against UC for “breach of contract, conversion, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and unfair competition.” The company was seeking “equitable and monetary relief for injuries that have been, and will continue to be, caused by UC’s incompetence and unlawful conduct,” according to a CBC press release

UC Davis claimed that its breeding program continued to be “robust,” and that it remained committed to keeping the fruits of the program available to all California growers.

The university won the opening round of the lawsuit, when U.S. District Judge Vince Chhabria rejected CBC’s request for a temporary restraining order that would have forced UC to turn over copies of its breeding program’s plants to a third-party grower. In denying the request, Chhabria wrote that CBC “has not shown a likelihood of success on the merits” of the case, according to The Sacramento Bee.

Turbulent transition

This is now the second lawsuit filed over concerns about the future direction of UC’s strawberry breeding program. The first came in October 2013, when the California Strawberry Commission (CSC) sued UC Davis. CSC was concerned about the impending retirements of Doug Shaw and Kirk Larson, UC’s longtime strawberry breeders, who had announced that they would retire from the university to form a private breeding venture (which became CBC).

CSC, an agency of the state government that represents the research interests of California’s strawberry growers, claimed that the creation of a private breeding venture would leave the UC program at a “distinct competitive disadvantage,” since it would redirect most of the public program’s expertise, facilities and genetic material toward private profits.

The university claimed that the allegation that it was not taking steps to continue its breeding program was a misconception, and filed a countersuit in October 2014. CSC and UC settled their dispute in early 2015. At the same time, UC announced it had hired Steven Knapp to run the breeding program and replace Shaw and Larson, who had left the previous December.

“The hiring of the new plant breeder and the commitment to continue the public program were critical to resolving the dispute,” Rick Tomlinson, CSC’s president, said at the time.

Lucky Westwood, operations manager for California Giant Berry Farms, a partner in the CBC private breeding venture, said the university took no steps to replace Shaw and Larson until it was sued by CSC.

“They had three years after the announcement of retirement, but didn’t do anything,” Westwood said.

Steven Knapp is the new director of the UC Davis strawberry breeding program. Photos: Gregory Urquiaga/UC Davis
Steven Knapp is the new director of the UC Davis strawberry breeding program. Photos: Gregory Urquiaga/UC Davis

The resolution of the first lawsuit didn’t remove CBC’s concerns about the state of the UC breeding program. Those concerns mounted when UC laid off the program’s staff in 2014 (CBC promptly hired them), but reached a peak in April 2016, when plants from the UC program arrived at nurseries in “bad shape.” That’s when CBC and its partners decided to file a lawsuit, Westwood said.

In addition to Shaw, Larson and California Giant, CBC’s partners include principals at Orange County Produce, International Semillas, Rod Koda, Daren Gee and Lassen Canyon Nursery.

Shaw and Larson developed the genetic material the UC breeding program is working with today, and though the CBC partners have an ownership interest in that material, UC has “stiff-armed” them, Westwood said.

“We’ve been asking for, and continue to only ask for, a non-exclusive license to use this material for breeding, but they’re not letting us work with it despite our ownership interest,” he said. “They deny we have standing to even talk to them.”

Westwood said the UC breeding program hasn’t made any new crosses since “about 2012.”

“The people there now have done some internal things, but they’re not creating any new material as far as we can tell,” he said. “They’ve departed from a program that’s carried on a certain way for 60 years, and was extremely successful.”

California’s – and the world’s – strawberry industry needs a steady flow of new varieties with improved size, firmness, transportability and other characteristics. UC’s breeding program provided that for decades, and it needs to continue, Westwood said.

“Across the board, plants are better than they used to be, and (the UC) program is the reason,” he said. “We need the pipeline to keep going. The world depends on California varieties.”

Industry Divide?

Westwood said there are about 400 strawberry growers in California, and it’s hard to pin down the industry’s take on the current direction of the UC breeding program. Grower opinions are probably mixed. CBC’s partners, however, account for nearly one-fifth of the state’s strawberry acres, and they don’t think the public breeding program is headed in the right direction.

Ever since UC and CSC signed their settlement in 2015, however, the university has made good progress on restoring its strawberry breeding program, said Carolyn O’Donnell, CSC’s communications director.

“It’s a privilege to participate in the novel research they’re doing at UC Davis,” said Tom AmRhein, a CSC member and producer with Naturipe Berry Growers.

“Growers are happy about the new focus and positive energy the team is bringing to the program.”

The breeding program has launched a large-scale genetic disease resistance experiment, added students and staff to its research team and planted yield trials on five farms from Ventura to Watsonville. The program is collecting strawberry species from the wild and germplasm from USDA and storing them in its collection of material, which includes about 1,700 cultivars. Of those cultivars, 180 are considered elite and most likely to develop into a winning variety, according to UC Davis.

“Because all the data and material they develop is public, it will be available to any grower, which is so crucial in today’s competitive marketplace,” said Dan Legard, CSC’s vice president of research and education.

— Matt Milkovich, managing editor

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