Yves here. This is the second post this week in Bayer’s attempt to reduce the damage from its Roundup/glyphosate lawsuits is evidenced by violence outside the letter-for-a-Federal-judge in response to the proposed settlement of 60,000 cases consolidated in the State of Northern California in a multi-district action. This is a pass-the-popcorn kind of episode, so enjoy!
Note that although the judge in question, Vince Chhabria, has said that he will not be able to fix the problems with the proposed agreement, his critical comments that will facilitate an appeal against Bayer do not withdraw the plan to take due process steps.
By Carey Gillam, editor-in-chief of the New Lede whose experience includes 17 years as a reporter for Reuters international news service (1998-2015). He is the author of “Whitewash – A Story of Herbicides, Cancer and Scientific Corruption,” an exposé of Monsanto’s corporate corruption in agriculture. The book won the prestigious Rachel Carson Book Award from the Society of Environmental Journalists in 2018. His second book, a legal thriller titled The Monsanto Papers, was released on March 2, 2021. He has also contributed chapters to a book on environmental journalism and a book on pesticide use in Africa. First published in New Lede
In a heated hearing Thursday, a federal judge who has presided over thousands of cases in Roundup cases nationwide voiced strong criticism of a proposed ruling that Roundup maker Bayer is pursuing in a Missouri court.
The proposed $7.25 billion settlement, which Bayer and a group of plaintiffs’ lawyers disclosed in February, appears to be “mind-boggling,” “legally problematic,” fraught with “significant problems,” and entered into in a secretive and hasty manner that amounted to a “dirty deal,” U.S. District Judge Vince Chhabria said in a sentencing hearing.
Chhabria, who serves in the Northern District of California, handles multidistrict litigation (MDL) involving plaintiffs against the former Monsanto company, now owned by Bayer. Plaintiffs in the lawsuits claim that exposure to Monsanto’s glyphosate weed killer caused them to develop cancer and that Monsanto failed to warn them of the cancer risks.
Chhabria has been presiding over the case since 2016, and in 2021 rejected a proposed $2 billion class-action settlement filed in his court.
Bayer has since paid more than $11 billion in jury awards and settlements to settle more than 100,000 claims, but still faces about 60,000 pending lawsuits. Company officials said they hoped the new settlement process would help end the litigation.
The new attempt to settle the class action was not filed in the Chhabria court, but instead was filed by Bayer and a group of plaintiffs’ attorneys in Missouri, St. Louis Circuit Court of the City of St. Louis. Louis, where many Roundup cases are pending.
“How Did This Happen”
The agreement was entered into on Feb. 17. Bayer’s lawyers and the group of plaintiffs’ lawyers who joined Bayer in the settlement held a meeting with the judge in St. Louis on the same day they filed it, without public notice and without a written record of the negotiations.
Bayer and a supporting plaintiffs’ attorney describe the settlement as a way to “bring billions of dollars in compensation to tens of thousands of plaintiffs.”
But opposing attorneys who also represent the Roundup plaintiffs were not given notice and were not allowed to be heard to voice concerns about the deal before a judge in St. Louis gave the first permission.
Those opposing attorneys allege the proposed class-action settlement between Bayer and a group supporting plaintiffs’ lawyers enriches that group of plaintiffs’ lawyers while providing little benefit to the large number of cancer patients who will be covered by the settlement. So far, a Missouri judge has rejected their efforts to slow down the process of approving and implementing the agreement.
In Thursday’s federal court filing, Chhabria pressed the attorney involved in putting together the settlement about the circumstances surrounding how and when the class action was filed in the Missouri court.
“I’m just trying to understand how this happened,” he said. “The judge knows you’re going to come that day. You have a meeting with the judge the day you put him in, probably a pre-arranged meeting with the judge … in his courtroom. It’s not recorded and no one knows this was happening. And then there’s no hearing where anyone has an opportunity to discuss these concerns with the judge,” Chhabria said.
“And the judge pre-authorizes the settlement,” Chhabria continued, “which suddenly puts all these important obligations on people across the country … and does it without giving the other side a chance to be heard?”
Attorney Christopher Seeger, the attorney involved in negotiating the class-action settlement, told Chhabria that he was “not backing down” and acknowledged that it was “not written as far as I know” and “no one knows about it.”
“In other words, it was dirty,” Chhabria said.
Seeger responded that there would be a final ratification hearing and opposition to the deal would be “fully heard.”
“Difficult Position”
Thursday’s hearing was called to address a motion filed by plaintiffs’ attorneys opposing the class action. They are seeking some form of intervention or a Chhabria declaration showing concern for the terms of the class action settlement.
Under the settlement, the average payout for a Roundup residential user diagnosed with invasive non-Hodgkin lymphoma before age 60 is $40,000, after deducting attorneys’ fees, litigation costs, and medical and other obligations, the moving opposition notes.
Among other things, opposing attorneys deal directly with the process of “opting out” of a settlement agreement. Under the terms of the proposed settlement, people across the country who do not want to be part of the deal and want to continue taking their cases to court in hopes of receiving higher monetary awards will have to participate in “difficult, unfair and unconstitutional opt-out procedures,” the opposing attorneys said in their brief.
They told Chhabria that he had the authority to “enjoin Monsanto and those acting in concert” to “abuse or allow the abuse of the opt-out process to trap plaintiffs who do not want to be part of the class.”
However, in response, Chhabria said that although he sees many problems with the correction, he does not see it as his role to correct them.
“I think it’s true that the settlement agreement puts a lot of burden on people who have MDL claims and claims … in other federal court cases,” Chhabria said. “This exit process is strange. I have never seen anything like it. It puts people in a difficult situation. No one has to convince me that there are serious problems with this settlement agreement.”
But problems with the agreement can be taken up by other courts, he said.
“Whatever issues there are with this settlement agreement, and there are many, are for the Missouri appellate courts to deal with and possibly the United States Supreme Court,” Chhabria said. “But it’s not for me to talk.”
Supreme Court hearing
The proposed class-action settlement is only one part of Bayer’s strategy to end the lawsuit. The company also asked the US Supreme Court to rule that federal law preempts states and federal court judges from failing to warn of a cancer risk if the Environmental Protection Agency (EPA) has not found such a risk exists and does not require such a warning. The EPA’s position is that glyphosate is “unlikely” to be carcinogenic. The Supreme Court gave oral arguments on April 27 in the case and is expected to issue a decision this summer.
Observers said the court appeared divided on the question and the outcome was too close to call.
Uncertainty about the Supreme Court’s decision adds to the tension over the proposed class action settlement because it calls for plaintiffs to enter or withdraw from the settlement before a decision is expected.
