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 that seeks to undo the nationwide program.

The objections, filed Thursday 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. That filing was followed by a “notice of removal” on Friday that seeks to shift the case to federal court, where its future could be in jeopardy.

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 …,” Thursday’s 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 May 21 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.

In the objections to the class action, Keller and lawyers from the Tennessee firm of Frazer PLC 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 May 21 court filing states.

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.

Alleging a laundering “scheme”

In the subsequent May 22 filing in the US District Court for the Eastern District of Missouri, Keller seeks to “remove” the case from state court to federal court jurisdiction. The hope is that the matter would then be sent to federal court in California where US District Judge Vince Chhabria has been overseeing the nationwide Roundup litigation since 2016.

Chhabria is on record as questioning the ethics of the settlement, calling it “filthy”, “mind-boggling,” “legally problematic,” and plagued with “major problems. But Chhabria has no jurisdiction over a state court matter.

“This class action was filed not to litigate active claims, but to launder a liability-management scheme through the courts,” the removal filing states.

In seeking the removal to federal court, Keller is representing a group of people who have lawsuits pending alleging they developed cancer from exposure to the company’s herbicides. While typically considered plaintiffs in the litigation, Keller is seeking to convince the court his clients should be viewed as defendants with respect to the settlement they are objecting to.

The transfer to federal court is dependent upon the court agreeing to see the objecting plaintiffs as defendants with respect to the settlement.  It makes a novel argument that may not work, some legal observers said.

The removal notice argues that the interests of Monsanto and the plaintiffs’ lawyers agreeing to the settlement make them “entirely aligned”, making them “settling parties” and “partners” in the litigation.

“The only parties who oppose the relief the Settling Parties seek are the Objector Defendants,” the notice of removal states.

“Each developed Non-Hodgkin Lymphoma after using Roundup for years. And each has a right to pursue their claims against Monsanto in court. But the Proposed Settlement, if approved, will bind them to unconscionably low compensation for their injuries unless they (and thousands of similarly situated Roundup victims) successfully navigate the outrageous opt-out procedures the Settling Parties have asked the Missouri trial court to bless,” the filing states.

In its statement, Bayer said the removal notice has no merit. “The class is properly before a Missouri state court where the overwhelming majority of remaining claims have been filed,” the company said.

Bayer and the lawyers who helped structure 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.

Chris Seeger, one of the lawyers who helped craft the deal with Bayer, said the removal notice is “a baseless delay tactic that should be promptly denied.”

He said that the settlement is the clearest path to “guaranteed compensation for cancer victims who have waited more than a decade for justice,” adding that his and other law firms backing the deal “remain confident in this agreement.”

Supreme Court decision looms

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 of the settlement 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 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.

Seeger said the prospect of a Supreme Court decision that could “wipe out Roundup failure-to-warn claims and the looming risk of a Bayer bankruptcy” make the settlement the best option for Roundup plaintiffs.

Featured image by Sasun Bughdaryan on Unsplash.