With a rich payout to lawyers but little for plaintiffs, Bayer’s Roundup settlement faces critics, doubts

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A class action settlement proposed in the nationwide Roundup litigation would award $675 million to lawyers who negotiated the settlement, while plaintiffs suffering from cancer would receive, on average, $10,000 to $165,000 each, according to a new court filing in the case.

The request for court approval was filed last week by lawyers from six firms who called the request “fair” and “reasonable” and achieved through “exceptional effort,” though multiple other lawyers who have been involved in the Roundup litigation since its inception oppose the terms of the settlement and question its fairness.

The details on the fee arrangement added fresh fodder for critics of the deal. Additionally, an order issued last week by a federal judge overseeing Roundup litigation cast doubt on the ability of the settlement to bind future potential plaintiffs to its terms.

For Bayer, the German conglomerate that bought Roundup maker Monsanto in 2018, the $7.25 billion settlement plan could be key to resolving the decade-long litigation, which has involved well over 100,000 claims brought by people alleging they developed cancer from exposure to herbicides such as Roundup made with the chemical glyphosate.

Bayer has been struggling under the weight of the costly litigation, paying more than $11 billion so far in settlements and jury awards and tens of thousands of cases still pending.

The settlement aims to include people currently suing the company and also Roundup users who have not yet sued the company but may want to do so in the next 17 years if they develop non-Hodgkin lymphoma (NHL). Compensation would be tiered and awarded based on the nature and extent of a class member’s exposure, age at the time of diagnosis, and type of NHL. No other cancers are included, only NHL.

The company and the team of plaintiffs’ lawyers who put the class action deal together have gotten speedy approval from the Missouri court where the agreement was filed, and are currently advertising the deal across the country. The Missouri court is scheduled to consider final approval of the agreement in July.

Bayer and other lawyers supporting the deal say it is the best way to ensure that the company does not push the herbicide business into bankruptcy and that farmers will continue to have access to the company’s popular glyphosate weed killers and to resolve claims from people who may never get a trial for their cases due to clogged courts.

They also note Bayer’s case pending before the US Supreme Court, in which the company is seeking a ruling that would preempt plaintiff claims that the company should have warned of a cancer risk with its glyphosate products.

The fees of $675 million, which would be in addition to contingency fees taken off the top of awards paid to plaintiffs, are reasonable and well within legal benchmarks, the lawyers requesting the fees said in their new filing.

They said they “achieved a historic result” that “eliminates” many risks for the people with cancer who become members of the class. They noted that they “will continue to work for at least the next 17 years, devoting tens of thousands of hours” to implement the settlement and “ensure that both present and future claimants receive the compensation secured on their behalf.”

But critics say the deal awards excessive lawyer fees while providing little for people suffering from cancer, and is structured in a way that makes it very difficult for people to opt out of the deal, limiting their ability to pursue future lawsuits.

“The settlement is shockingly violative of the constitution,” said Gerson Smoger, a Texas plaintiffs’ attorney who is former president of the Public Justice Foundation and has argued pesticide issues before the US Supreme Court.

“The settlement is shockingly violative of the constitution.” – Gerson Smoger, a Texas plaintiffs’ attorney

Smoger, who does not represent any Roundup plaintiffs, said the settlement plan is “extraordinary” in many respects, including in how it seeks to bind the ability of people who currently do not have NHL and would not know they could lose rights for future claims if they don’t opt out. Those people using Roundup now who later get cancer and want to sue would need to formally exit the class but would still be prohibited from seeking punitive damages in any lawsuit they may file and could find it difficult to secure a lawyer.

Smoger said the terms of the deal also provide financial incentives for plaintiffs’ lawyers to advise their clients to accept the terms and not to opt out, an ethically questionable provision.

He also noted that in similar class action settlements that seek to resolve future claims, companies agree to stop selling the product at the heart of the claims. That is not the case with this agreement.

“What they want is the end of anybody’s ability to have them punished for their conduct,” Smoger said.

Other lawyers had similar concerns.

“What is happening here is what makes plaintiffs’ lawyers distrusted,” said one plaintiffs’ attorney who opposes the deal but did not want to be quoted by name. The company will be able to continue to sell its products without adding a cancer warning while people who get cancer from using the products will be limited in their ability to sue, the lawyer said.

Opposing lawyers last month asked US Judge Vince Chhabria to weigh in on the class action deal. Chhabria, who serves in the Northern District of California, is in charge of the Roundup multidistrict litigation (MDL) that has involved thousands of people from around the country who are suing the former Monsanto company.

Chhabria said while he had serious concerns about the validity and fairness of the agreement, it was not his place to interfere with the settlement moving its way through the Missouri court.

Chhabria reiterated that stance in a May 6 order, but also made it clear that he would not uphold the class action settlement in his court.

“The agreement, even if it were to receive final approval from the state trial court and then somehow survive appellate review, would not prevent this Court from exercising its authority over the cases in this federal MDL,” Chhabria wrote in his order. “At that point, current or future plaintiffs in this MDL will be free to contend that the settlement does not bind them.”

When asked about the judge’s order, Bayer provided a statement saying: “Monsanto is pleased the MDL Court has denied the motion by two outlier firms attempting to interfere with the nationwide Roundup class settlement. We look forward to moving ahead with the settlement process in the Missouri courts, where nearly all of the remaining cases in the Roundup litigation are pending and where the class has already received preliminary approval. The class settlement is supported by plaintiffs’ counsel representing tens of thousands of claimants and does not include the approximately 250 plaintiffs with claims pending before the MDL court as of the settlement date unless they choose to join.”

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