Bayer’s proposed Roundup settlement violates Constitution, new legal filing claims

Bayer’s proposed $7.25 billion class action settlement is a “sweetheart deal” that violates the US Constitution by running “roughshod over basic due process rights, according to a court filing Thursday that seeks to undo the nationwide program.

The objections, filed in Missouri’s Circuit Court of the City of St. Louis, come in response to the settlement proposed by Bayer and a group of plaintiffs’ attorneys in February.

Bayer is hoping that the settlement deal will resolve tens of thousands of lawsuits brought by people suffering from cancer they blame on exposure to glyphosate herbicides, such as Roundup. But it has drawn criticism from several legal observers since it was announced and hastily granted preliminary approval by a Missouri judge.

Critics say the structure of the deal provides a rich payout of $675 million in fees to the lawyers helping promote the deal, but paltry payments for the cancer sufferers who make up the class. The settlement would include people currently suing the company and also Roundup users who develop non-Hodgkin lymphoma (NHL) in the future.

Moreover, Bayer, which acquired Monsanto and its glyphosate herbicides brands in 2018, could continue selling the products without cancer warnings.

“It would reward Bayer and Monsanto for its past deeds and give them the green light to have Roundup sprayed everywhere on everything and everybody …,” the new court filing states. “Approval of the settlement would be to free one of the nation’s most notorious, long-term polluters from jury trials and real liability for their misdeeds.”

The objection was filed by lawyers from two plaintiffs’ firms, including lawyer Ashley Keller, who last month argued before the US Supreme Court against Monsanto in a case that Monsanto hopes will garner a ruling that limits future lawsuits against it.

“Monsanto and class counsel walked into court hand in hand to ram through a deal that gifts $675 million to class lawyers while leaving present and future cancer victims with a pittance,” Keller told The New Lede.

“Monsanto and class counsel walked into court hand in hand to ram through a deal that gifts $675 million to class lawyers while leaving present and future cancer victims with a pittance.” – attorney Ashley Keller.

In the objections to the class action, Keller and lawyers from the Frazer PLC firm also allege that the deal is structured to be “comically difficult for injured parties to exercise their constitutionally guaranteed option to opt out of these proceedings.” The settlement plan is designed to include both current and future Roundup users who develop cancer unless they go through a series of detailed steps to affirmatively opt out of the program.

“The class seeks to bind a group of millions upon millions of people, many who have not been conceived and millions who are children, to the terms of the settlement via a so-called “futures” subclass reaching anyone who “saw” anyone using Roundup. Such a class is unconstitutional and unprecedented in the annals of US jurisprudence,” the new court filing states.

Bayer and the lawyers who helped structure the deal say it is a fair program and 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.

In a statement responding to the objections, Bayer said it is common for objections to be filed in a proposed nationwide settlement and they would be considered at a final approval hearing set for July.

“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.

Bayer and the plaintiffs’ lawyers supporting the settlement have been leveraging the Supreme Court case to pressure plaintiffs not to opt out of the settlement. The deadline for opting out is June 4, while a Supreme Court decision is not expected until late June.

The Supreme Court will be ruling on Monsanto’s argument that under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), juries in state courts cannot hold the company liable for failing to warn of a cancer risk if the Environmental Protection Agency (EPA) has not found such a risk exists and has not required such a warning. The EPA’s position is that glyphosate is “unlikely” to be carcinogenic.

If plaintiffs opt out of the settlement and then the Supreme Court rules in Monsanto’s favor, those plaintiffs could find it much more difficult to pursue lawsuits against the company and would miss out on settlement awards.

A hearing on final approval of the deal is set for July, after the Supreme Court is expected to rule.

“Essentially what Bayer is attempting to do is to ‘buy’ all present and future cancers of any kind (regardless of where the science leads us all in the coming years) to a number that is fixed in time and which leaves victims with hardly any compensation for a cancer known to be caused by its products,” the court filing states.

Featured image by Sasun Bughdaryan on Unsplash.