Bayer’s class action settlement plan draws widespread outrage, opposition

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(Updated March 10 to include judge’s order delaying hearing until May 12)

More than 90 law firms and more than 160 lawyers have notified a federal court judge overseeing U.S. Roundup litigation that they oppose Monsanto owner Bayer AG’s $2 billion plan to settle future claims the company expects to be brought by people diagnosed with cancer they blame on use of Monsanto’s herbicide products.

In recent days, nine separate objections to the plan and four amicus briefs have been filed with the U.S. District Court for the Northern District of California, letting Judge Vince Chhabria know the extent of opposition to the proposed class settlement. Chhabria has been overseeing thousands of Roundup cancer lawsuits in what is called ‘multidistrict litigation’ (MDL).

On Monday, the National Trial Lawyers (NTL) joined in the opposition on behalf of its 14,000 members. The group said in their filing with the court that they agree with the opposition that “the proposed settlement seriously endangers access to justice for millions of people in the proposed class, would prevent Monsanto’s victims from holding it accountable, and would reward Monsanto in numerous respects.”

The group reiterated in its filing the fear that if Bayer’s proposed settlement is approved, it will set a dangerous precedent for plaintiffs in future, unrelated cases: “It will hurt the proposed class members, not help them. This type of settlement would also provide an untenable template for other corporate tortfeasors to avoid appropriate liability and consequences for their conduct… the proposed class settlement is not how a ‘system of justice’ works and thus such a settlement should never be approved.”

The $2 billion proposed settlement is aimed at future cases and is separate from the $11 billion Bayer has earmarked to settle existing claims brought by people alleging they developed non-Hodgkin lymphoma (NHL) due to exposure to Monsanto’s weed killers. The people impacted by the class settlement proposal are individuals who have been exposed to Roundup products and either already have NHL or may develop NHL in the future, but who have not yet taken steps to file a lawsuit.

No punitive damages

One of the key problems with the Bayer plan, according to critics, is that everyone in the United States who meets the criteria as a potential plaintiff will automatically become part of the class and subject to its provisions if they do not actively opt out of the class within 150 days after Bayer issues notifications of the formation of the class. The notification proposed is not sufficient, the critics say. Moreover, the plan then strips those people – who may not even choose to be a part of the class – from the right to seek punitive damages if they do file a lawsuit.

Another provision garnering criticism is a proposed four-year “standstill” period blocking the filing of new lawsuits.

The critics also object to the proposed formation of a science panel that would act as a “guidepost” for an “extension of compensation options into the future” and to provide evidence about the carcinogenicity – or not – of Bayer’s herbicides.

The initial settlement period would run for at least four years and could be extended after that period.  If Bayer elects not to continue the compensation fund after the initial settlement period, it will pay an additional $200 million as an “end payment” into the compensation fund, the settlement summary states.

Struggling for a solution

Bayer has been struggling to figure out how to put an end to the Roundup cancer litigation since buying Monsanto in 2018. The company lost all three trials held to date and lost the early rounds of appeals seeking to overturn the trial losses.

Juries in each of the three trials found not only that Monsanto’s glyphosate-based herbicides such as Roundup cause cancer, but also that Monsanto spent decades hiding the risks.

The small group of lawyers who put the plan together with Bayer say it will “save lives” and will provide “substantial benefits” to people who believe they developed cancer from exposure to the company’s herbicide products.

But that group of lawyers stands to receive $170 million for their work with Bayer to implement the proposed plan, a fact critics say taints their involvement and objectivity. None of the lawyers involved in putting the class action plan together with Bayer actively represented any plaintiffs in the broad Roundup litigation before this point, the critics point out.

In one of the opposition filings, lawyers seeking a rejection of the proposed settlement wrote this:

“This proposed settlement is opposed by those most familiar with the litigation of cases involving dangerous products like Roundup because they recognize that this proposal would benefit Monsanto and class counsel at the expense of the millions of people exposed to Roundup.

“Although this Roundup MDL has been underway for over four years, and other Roundup cases have been litigated in state courts, the impetus for this engineered class action settlement does not come from lawyers who have been handling Roundup cases and believe that an alternative method for resolving them is essential. Instead, the lawyers who are behind this settlement – and it is surely the lawyers and not Roundup victims – are class-action lawyers who seek to impose their views on all those who have been exposed to Roundup, in exchange for a very large fee.

“But an even bigger winner here will be Monsanto, which will get a four-year stay of litigation by class members, who will also lose their right to seek punitive damages and be saddled with the results of an ill-conceived science panel. In exchange, class members will be shunted into an alternate compensation system that features modest payments, increased complexity, and high hurdles to qualify.”

Delay sought

Bayer’s settlement plan was filed with the court on Feb. 3, and must be approved by Judge Chhabria in order to become effective. A prior settlement plan submitted last year was scorned by Chhabria and then withdrawn.

A hearing on the matter was set for March 31 but the attorneys who put the plan together with Bayer have asked Judge Chhabria to delay the hearing until May 13, citing the breadth of the opposition they must address. The judge responded with an order resetting the hearing for May 12.

“These filings totaled more than 300 pages, in addition to more than 400 pages of attached declarations and exhibits,” the lawyers said their request for more time. “The objections and amicus briefs raise a host of issues, including, among other things, the overall fairness of the settlement, multiple constitutional attacks on the settlement and proposed advisory science panel, technical challenges to the notice program, attacks on the fairness of the compensation fund, and challenges to predominance, superiority, and the adequacy of class (and subclass) counsel.”

The lawyers who filed the proposed plan said they could use the additional time before the hearing “to engage with objectors” to “streamline or narrow the issues that need to be contested at the hearing.”

Deaths continue

Amid the arguments over Bayer’s proposed settlement, plaintiffs continue to die. In what is referred to as a “Suggestion of Death,” lawyers for plaintiff Carolina Garces filed a notification with the federal court on March 8 that their client had died.

Several plaintiffs suffering from non-Hodgkin lymphoma have died since the start of the litigation in 2015.

Roundup cancer plaintiffs eagerly await settlement news

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Thousands of cancer patients and their families around the United States were notified this week that a comprehensive settlement of their claims against the former Monsanto Co. should be announced before the end of the month.

Though specific settlement amounts for specific plaintiffs are still to be determined, groups of plaintiffs have been told to expect details of a sweeping financial deal to be publicly announced before a June 30 deadline set for completing the year-long negotiations. All allege they developed non-Hodgkin lymphoma after exposure to Monsanto’s glyphosate-based herbicides, such as Roundup. They additionally allege that the company knew of scientific evidence showing cancer risks associated with its products, but worked to suppress the information to protect its profits.

Lawyers for Monsanto owner Bayer AG and lawyers representing more than 50,000 of the plaintiffs have been engaged in contentious, start-and-stop discussions about a settlement for several months, frustrating families who are struggling financially and emotionally with the strains of fighting cancer.

Many plaintiffs have lost jobs and homes as they deal with costly cancer treatments and some have died while waiting for their cases to be resolved, court records show. Notification of the death of one such plaintiff was made to the federal court in San Francisco on June 1.

Many of the lead law firms with large caseloads have agreed to the terms of a deal that calls for $8 billion-$10 billion to be paid by Bayer in exchange for an agreement that those firms will not file new cancer claims against the company, according to sources close to the litigation.

The amount of money each plaintiff gets will depend upon several factors. The settlements are expected to be structured so they will be tax-free for the plaintiffs.

Some law firms with Roundup plaintiffs have yet to finalize a deal, and settlement meetings were still being held last week, including with the Louisiana-based firm of Pendley, Baudin & Coffin, according to sources close to the litigation.

Bayer spokesman Chris Loder would not confirm the timing or terms of any announcement, saying only that the company had made progress in the negotiations but would “not speculate about settlement outcomes or timing.”

He said any resolution has to be “financially reasonable” and provide “a process to resolve potential future litigation.”

Bayer, which bought Monsanto in June of 2018, has been seeking to put an end to the mass litigation that has driven down the company’s stock, spurred investor unrest, and thrust questionable corporate conduct into a public spotlight.  The first three trials led to three losses for Monsanto and jury awards of more than $2 billion, though trial judges later sharply reduced the awards. Monsanto appealed each of the three losses and is now awaiting an appellate ruling on the first case – Johnson v. Monsanto – after a June 2 oral argument. 

Despite the settlement talks, court proceedings have been continuing on multiple cases. A flurry of lawsuits were recently transferred from state courts into the federal multidistrict Roundup litigation in the U.S. District Court for the Northern District of California in San Francisco. And lawyers for Bayer have been busily filing their answers to the lawsuits.

In the city of St. Louis, Mo., Monsanto’s longtime home-town, the case of Timothy Kane v. Monsanto has a status hearing set for June 15 and a jury trial set to start June 29.  And though it appears very unlikely the case will proceed, on Wednesday lawyers for the chemical giant filed a motion seeking to exclude testimony of one of the witnesses for the plaintiffs.

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