A group of 14 law firms representing nearly 20,000 plaintiffs is seeking to intervene in Bayer’s proposed class action settlement of Roundup litigation, citing concerns that the deal will not be fair to cancer sufferers.
The group filed both a motion to intervene and a motion for an extension of time for court preliminary approval of the deal in St Louis city circuit court in Missouri late on February 24.
The law firms say the deal appears “unprecedented” and raises multiple “red flags”.
“It is hard to escape the impression that the proposed settlement would give Monsanto everything it desires – a near-complete release of liability for Monsanto and its parent company, Bayer AG – while giving inadequate consideration to many putative class members, who would surrender their substantive rights in exchange for settlement offers that may never result in payment,” the law firms state in their motion.
Bayer and a different group of plaintiffs’ lawyers filed the settlement proposal with the court on 17 February, with a provision to seek preliminary court approval within a 15-day period.
But the opposing firms are seeking a 60-day extension of that “fast track” time frame, saying the “sheer scale and impact of the proposed settlement, together with concerns raised by its terms and how it was negotiated, warrant broader public participation and scrutiny”.
Bayer announced the $7.25bn proposed class action settlement on February, proposing to pay amounts ranging from $10,000 to $165,000 to users of its glyphosate-based weed-killing products who have non-Hodgkin lymphoma (NHL), a type of blood cancer, or who develop it in the next several years.
Bayer, which maintains that its glyphosate herbicides do not cause cancer, has faced more than 100,000 lawsuits since buying the Roundup maker Monsanto in 2018. The company has so far paid billions of dollars in settlements and jury verdicts to tens of thousands of people suffering from NHL that they blame on exposure to Roundup and other Monsanto glyphosate-based herbicide brands.
The law firms seeking to intervene in the proposed settlement alleged that it “heavily favors” occupational Roundup users such as farmers or commercial landscapers over residential users.
Under the proposed payment schedule, an occupational claimant diagnosed before age 60 with aggressive NHL could receive, on average, $165,000, while a residential user with the same traits would average $40,000, the motion to intervene points out.
Additionally, they object to Bayer’s request that the court stay the thousands of lawsuits pending against the company in Missouri.
The law firms say the 600-page settlement agreement was “negotiated behind closed doors” and does not adequately represent the interests of the plaintiffs they represent.
In response to the opposition filings, Bayer said in a statement that it is “not surprised” and fully expects a “robust debate” about the settlement proposal.
“We remain confident that the long-term and well-financed proposed class settlement plan, which is supported by plaintiff law firms representing thousands of potential class members, is fair to all claimants, and warrants approval by the court,” the company said.
The plaintiffs’ legal team that negotiated the settlement proposal with Bayer said in a statement: “It is obvious that the proposed intervenors’ have reviewed the agreement over the last week, and are hopefully working as hard to communicate its terms to their clients as they are trying to delay compensation for the tens of thousands of Roundup victims who have waited a decade for justice.”
The team said in their statement that without a settlement, plaintiffs face “the risks of Monsanto filing for bankruptcy”, among other events that could hinder their ability to collect from the company in the future.
Bayer is hoping a looming US supreme court review will incentivize plaintiffs to agree to the settlement because if Bayer prevails in the case, future lawsuits against the company could be severely hampered.
Bayer maintains that federal law pre-empts failure-to-warn claims against the company. Because the Environmental Protection Agency (EPA) has not established a definitive cancer link and has approved labels with no cancer warning, lawsuits claiming the company should have provided a cancer warning must be barred, the company says.
The supreme court agreed to weigh in on that issue and has set a hearing for 27 April.
The company filed its opening brief in the case on Monday. In its filing with the high court, Bayer cites support from Donald Trump and US regulators while renewing a threat to stop sales of glyphosate-based herbicides to farmers if it does not prevail with the justices.
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This story is co-published with the New Lede, a journalism project of the Environmental Working Group
