Bayer said to be reneging on Roundup settlement deals as virus closes courthouses

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Bayer AG is reneging on negotiated settlements with several U.S. law firms representing thousands of plaintiffs who claim exposure to Monsanto’s Roundup herbicides caused them to develop non-Hodgkin lymphoma, sources involved in the litigation said on Friday.

The reversal comes as U.S. courts are closed to the public because of the spreading coronavirus, eliminating the specter of another Roundup cancer trial in the near future.

Bayer, which bought Monsanto in June of 2018, has been engaged in settlement talks for close to a year, seeking to put an end to 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 Bayer and jury awards of more than $2 billion, though trial judges later reduced the awards.

Bayer made a public statement this week saying that settlement talks have been slowed by the coronavirus pandemic, but multiple plaintiffs’ lawyers said that was not true.

According to the plaintiffs’ attorneys, Bayer has been going back to law firms that had already completed negotiations for specified settlements for their clients, saying the company will not honor the agreed-upon amounts.

“A lot of lawyers around the country thought they had tentative deals,” said Virginia attorney Mike Miller, whose firm represents roughly 6,000 clients and won two of the three Roundup trials to date. Bayer is now demanding a “hair cut” on those deals, Miller said.

Whether or not the various firms will take the reduced offers remains to be seen.  “These are uncertain economic times,” Miller said. “People have to consider what’s best for their clients.”

In response to a request for comment, a Bayer spokesman provided the following statement: “We’ve made progress in the Roundup mediation discussions, but the COVID-19 dynamics, including restrictions imposed in recent weeks, have caused meeting cancellations and delayed this process…  As a result, the mediation process has significantly slowed, and realistically, we expect this will continue to be the case for the immediate future. During this time, we will continue to do whatever we can to help combat the global COVID-19 pandemic, consistent with our vision of ‘health for all, hunger for none.’ We cannot speculate about potential outcomes from the negotiations or timing, given the uncertainties surrounding the pandemic and the confidentiality of this process, but we remain committed to engaging in mediation in good faith.”

US Right to Know reported in early January that the parties were working on a settlement of roughly $8 billion to $10 billion. Bayer has acknowledged facing claims from more than 40,000 plaintiffs, but plaintiffs’ attorneys have said the total number of claims is much higher.

Among the firms who had negotiated settlements for their clients are the Andrus Wagstaff firm from Denver, Colorado and the Los Angeles firm of Baum Hedlund Aristei & Goldman. Both reached agreements last year with Bayer.

In addition, the Weitz & Luxenberg firm from New York and Mike Miller’s firm recently reached what they thought were agreements on terms. Each of the firms represents thousands of plaintiffs.

The primary leverage plaintiffs’ attorneys had been using in the settlement negotiations was the threat of another public trial. In the first three trials, damning internal Monsanto documents laid bare evidence that the company knew of the cancer risks of its glyphosate-based herbicides but failed to warn consumers; ghost-wrote scientific papers proclaiming the safety of its herbicides; worked with certain regulatory officials to quash a government review of glyphosate toxicity; and engineered efforts to discredit critics.

The revelations have triggered outrage around the world and prompted moves to ban the glyphosate-based herbicides.

Several trials that were to have been held over the last several months were cancelled shortly before they were scheduled to begin when Bayer agreed to individual settlements for those specific trial plaintiffs. Two of those cases involved children stricken with non-Hodgkin lymphoma and a third was brought by a woman suffering from non-Hodgkin lymphoma. Those plaintiffs, and others who have agreed to settlements in lieu of trials in recent months, are protected and are not part of the current rollback effort by Bayer, according to multiple sources involved.

Bayer is slated to hold its annual shareholders’ meeting on April 28. For the first time in the company’s history, the meeting will be held entirely online.

The first three plaintiffs to win jury awards against Monsanto have yet to receive any money as Bayer appeals the verdicts.

Stakes are high with two Roundup cancer trials starting amid settlement talks

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It’s been nearly five years since international cancer scientists classified a popular weed-killing chemical as probably carcinogenic, news that triggered an explosion of lawsuits brought by cancer patients who blame the former chemical maker Monsanto Co. for their suffering.

Tens of thousands of U.S. plaintiffs – some lawyers involved in the litigation say over 100,000 – claim Monsanto’s Roundup herbicide and other glyphosate-based weed killers caused them to develop non-Hodgkin lymphoma, while Monsanto spent years hiding the risks from consumers.

The first three trials went badly for Monsanto and its German owner Bayer AG as outraged juries awarded over $2.3 billion in damages to four plaintiffs. Trial judges lowered the jury awards to a total of roughly $190 million, and all are under appeal.

Two new trials – one in California and one in Missouri – are now in the process of selecting juries. Opening statements are scheduled for Friday for the Missouri trial, which is taking place in St. Louis, Monsanto’s former home town. The judge in that case is allowing testimony to be televised and broadcast by Courtroom View Network.

Bayer has been desperate to avoid the spotlight of more trials and bring an end to the saga that has bludgeoned the pharmaceutical giant’s market capitalization, and exposed to the world Monsanto’s internal playbook for manipulating science, media and regulators.

It looks like that end could be coming soon.

“This effort to secure a comprehensive settlement of the Roundup cases has momentum,” mediator Ken Feinberg said in an interview. He said he is “cautiously optimistic” that a “national all-in” settlement of the U.S. lawsuits could happen within the next week or two. Feinberg was appointed last May by U.S. District Judge Vince Chhabria to facilitate the settlement process.

Neither side wants to wait and see how appeals filed over the trial verdicts play out, according to Feinberg, and Bayer hopes to have good news to report at its annual shareholders’ meeting in April.

“You’re rolling the dice with those appeals,” Feinberg said. “I don’t think anybody wants to wait until those appeals resolve.”

In a recent sign of settlement progress, a trial scheduled to start next week in California – Cotton v. Monsanto – has been postponed. A new trial date is now set for July.

And on Tuesday, Chhabria issued a stern order reminding both sides of the need for secrecy as the settlement talks proceed.

“At the request of the mediator, the parties are reminded that settlement discussions… are confidential and that the Court will not hesitate to enforce the confidentiality requirement with sanctions if necessary,” Chhabria wrote.

Numbers of $8 billion-$10 billion have been floated by litigation sources, though Feinberg said he would “not confirm that number.” Some analysts say even $8 billion would be hard to justify to Bayer investors, and they expect a much lower settlement amount.

Several of the plaintiffs’ law firms that spear-headed the nationwide litigation have agreed to cancel or postpone multiple trials, including two that involved young children with cancer, as part of the settlement talks. But as they ease back, other firms racing have been racing to sign new plaintiffs, a factor that complicates settlement talks by potentially diluting individual payments.

Talks have also been complicated by the fact that one of the leading Roundup litigators – Virginia lawyer Mike Miller, a veteran in taking on large corporations in court – has so far refused to postpone trials, apparently shrugging off the settlement offers. Miller’s firm represents thousands of plaintiffs and is providing lead counsel for the two trials now getting underway.

The Miller Firm has been a critical part of the team that also involved the Baum Hedlund Aristei & Goldman firm from Los Angeles that dug out internal Monsanto records through discovery, using the evidence to achieve the three trial victories. Those records fueled a global debate over Roundup safety, showing how Monsanto engineered scientific papers that falsely appeared to be created solely by independent scientists; used third parties to try to discredit scientists reporting harm with glyphosate herbicides; and collaborated with Environmental Protection Agency officials to protect Monsanto’s position that its products were not cancer-causing.

Some of Miller’s clients are cheering him on, hoping by holding out Miller can command a larger pay-out for the cancer claims. Others fear he could scuttle the chances for a large settlement, particularly if his firm loses one of the new trials.

Feinberg said it is unclear if a comprehensive resolution can be achieved without Miller.

“Mike Miller is a very, very good lawyer,” said Feinberg. He said Miller was seeking what he thinks is appropriate compensation.

Feinberg said there are many details to work out, including how a settlement would be apportioned to plaintiffs.

A worldwide following of journalists, consumers, scientists and investors are watching the developments closely, awaiting an outcome that could impact moves in many countries to ban or restrict glyphosate herbicide products.

But those most impacted are the countless cancer victims and their family members who believe corporate prioritization of profits over public health must be held to account.

Though some plaintiffs have successfully treated their cancers, others have died while waiting for a resolution, and others grow still sicker as each day passes.

Settlement money won’t heal anyone or bring back a loved one who has passed. But it would help some pay medical bills, or cover college costs for children who have lost a parent, or just allow for an easier life amid the pain that cancer brings.

It would be far better if we didn’t need mass lawsuits, teams of attorneys and years in court to seek payments for injuries attributed to dangerous or deceptively marketed products. It would be far better to have a rigorous regulatory system that protected public health and laws that punished corporate deception.

It would be far better if we lived in a country where justice was easier to obtain. Until then, we watch and we wait and we learn from cases like the Roundup litigation. And we hope for better.