In this article, we delve into the ongoing legal struggles faced by Bayer in relation to its glyphosate product, Roundup. Recent courtroom developments highlight a federal judge’s intense scrutiny of a proposed settlement that could markedly affect around 60,000 pending lawsuits. The following analysis explores the judge’s remarks and the implications for Bayer and the plaintiffs involved.
Yves here. This second post this week on Bayer’s attempts to mitigate the fallout from its Roundup/glyphosate lawsuits reflects the unexpected intensity from a federal judge regarding a proposed settlement concerning 60,000 consolidated cases in the Northern District of California. This is an engaging situation, so grab your popcorn!
Notably, Judge Vince Chhabria, while stating he cannot rectify the issues with this proposed settlement, made critical remarks that suggest Bayer might face an easy path to appeal if it does not correct its procedural missteps.
By Carey Gillam, the editor-in-chief of The New Lede, who has 17 years of experience as a senior correspondent for Reuters (1998-2015). She is the author of “Whitewash – The Story of a Weed Killer, Cancer and the Corruption of Science,” which received the prestigious Rachel Carson Book Award from the Society of Environmental Journalists in 2018. Her second book, a narrative legal thriller titled The Monsanto Papers, was released on March 2, 2021. She has also contributed to textbooks on environmental journalism and pesticide use in Africa. Originally published at The New Lede
During a tense hearing on Thursday, a federal judge overseeing numerous cases linked to Roundup litigation voiced harsh criticism towards a class action settlement that Bayer is advocating for in a Missouri court.
The proposed $7.25 billion deal, which Bayer and a coalition of plaintiffs’ attorneys revealed in February, was described by U.S. Judge Vince Chhabria as “mind-boggling,” containing “major problems,” and filed in a manner he termed a “filthy deal.” This was stated during a hearing regarding the proposed agreement.
Judge Chhabria, based in the Northern District of California, is overseeing multidistrict litigation (MDL) tied to allegations that exposure to Monsanto’s glyphosate-based products has resulted in cancer, with claims that the company failed to sufficiently warn consumers of these risks.
Since taking charge of the litigation in 2016, Chhabria previously rejected a proposed $2 billion class action settlement in 2021, also filed in his court.
To date, Bayer has disbursed over $11 billion in jury awards and settlements for more than 100,000 claims, yet about 60,000 cases remain unresolved. Company officials hope this new settlement plan will help conclude the litigation.
The latest class action settlement was not initiated in Chhabria’s court but was instead filed by Bayer and a group of plaintiffs’ attorneys in the St. Louis Circuit Court for the City of St. Louis, where numerous Roundup cases are pending.
“How This Went Down”
The agreement was filed on February 17. On the same day, Bayer’s representatives and the plaintiffs’ attorneys met with the St. Louis judge without informing the public and without creating a transcript of the discussions.
Bayer and the supportive plaintiffs’ counsel promote the deal as a means to “deliver billions of dollars of compensation to tens of thousands of plaintiffs.”
However, attorneys representing opposing plaintiffs allege they were not notified and were denied a hearing to express their concerns before the judge in St. Louis granted preliminary approval of the proposal.
These opposing attorneys contend that the settlement arrangement disproportionately benefits the participating lawyers while providing minimal benefits to the many individuals suffering from cancer included in the settlement. So far, the Missouri judge has denied their attempts to delay the approval and implementation of the agreement.
At the hearing in federal court on Thursday, Chhabria questioned a lawyer involved in the settlement about the manner in which the class action settlement was filed in Missouri.
“I’m just trying to understand how this went down,” he stated. “The judge was aware you were going to meet that day. You had a pre-arranged meeting with the judge … in his courtroom. This was not recorded, and nobody knew about it. Then, the judge grants preliminary approval without giving anyone an opportunity to express their concerns?” Chhabria remarked.
“And this judge suddenly imposes significant obligations on people across the country … without hearing from either side?”
Attorney Christopher Seeger, involved in drafting the class action agreement, acknowledged that he was “not pushing back” and confirmed, “it was not transcribed as far as I know, and nobody was aware of it.”
“In other words, it was filthy,” Chhabria asserted.
Seeger responded that there would be a final approval hearing, during which objections to the deal would be “fully heard.”
A “Difficult Position”
The Thursday hearing focused on a motion filed by opposing plaintiffs’ lawyers who are seeking some form of intervention or declaration from Chhabria to express their concerns regarding the terms of the class action agreement.
According to the agreement, the average payout for a residential Roundup user diagnosed with aggressive non-Hodgkin lymphoma before age 60 is $40,000, from which attorney fees, litigation costs, and medical liens will be deducted, as noted by the opposition motion.
Among their concerns, the opposing lawyers criticized the settlement agreement’s “opt-out” procedure. Under the proposed terms, individuals wishing to opt out and pursue their cases in court for potentially higher monetary awards face “onerous, unfair, and indeed unconstitutional opt-out procedures,” the opposing lawyers argued in their brief.
They contended that Chhabria has the authority to prevent Bayer and its associates from “abusing or permitting abuses of the opt-out process to entrap litigants who do not wish to be part of the class.”
In response, Chhabria acknowledged seeing various problems with the settlement, but expressed that it is not his role to resolve them.
“It’s true the settlement agreement places a heavy burden on those with claims in this MDL and those involved in state court cases,” Chhabria remarked. “This opt-out procedure is unusual. I’ve never encountered anything like it. It puts individuals in a challenging position. It’s clear to me that significant problems exist with this settlement agreement.”
However, he indicated that these issues should be addressed by other courts.
“Any problems associated with this settlement agreement, and there are many, are matters for the appellate courts in Missouri to resolve, and possibly the United States Supreme Court,” Chhabria stated. “But it’s not for me to decide.”
Supreme Court Hearing
The proposed class action settlement is just one component of Bayer’s broader strategy to resolve the litigation. The company is also seeking a ruling from the U.S. Supreme Court on whether federal law prevents states and juries from holding it accountable for failing to warn of cancer risks when the Environmental Protection Agency (EPA) has not identified such risks. The EPA has declared that glyphosate is “unlikely” to be carcinogenic. The Supreme Court heard oral arguments on this matter on April 27 and is expected to issue a verdict this summer.
Observers have noted that the court appears divided on the issue, and the outcome is difficult to predict.
The ongoing uncertainty surrounding the Supreme Court’s decision adds another layer of complexity to the class action settlement proposal, as it requires plaintiffs to decide whether to opt in or out before the ruling is anticipated.
