Battle over $7.25 bln Roundup settlement takes a new turn as Supreme Court decision looms

A federal judge has rejected efforts to slow the progress of a $7.25 billion class action settlement in the nationwide Roundup cancer litigation, notching a win for Roundup maker Bayer but frustrating a group of plaintiffs’ attorneys who claim the deal is unfair to cancer patients.

The order handed down Wednesday from the US  District Court for the Eastern District of Missouri, sends the settlement back to the Circuit Court for the City of St. Louis, where it had been progressing quickly toward final approval before being abruptly removed from St. Louis to the federal court by the objecting attorneys last month.

US District Judge Edward Autrey said the case was improperly moved to federal court and thus must be sent back to St. Louis.

The order support efforts by Bayer, the German owner of the former Monsanto Co., to settle tens of thousands of lawsuits brought by people who claim they developed non-Hodgkin lymphoma (NHL) from exposure to Monsanto’s Roundup and other glyphosate herbicides. Bayer has been mired in costly litigation since buying Monsanto in 2018, and has paid out billions of dollars in settlements and jury awards.

Bayer announced the class action settlement in coordination with a group of supporting plaintiffs’ attorneys in February and quickly received preliminary approval from the St. Louis judge. The settlement drew immediate objections from other plaintiffs’ attorneys who have been fighting to kill or alter the deal.

The objecting attorneys and other critics say the structure of the class action settlement is a sweetheart deal that provides a rich payout of $675 million in fees to the lawyers who put the deal with Bayer together and are helping promote the deal, but provides 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 NHL in the future.

Moreover, Bayer could continue selling the products without cancer warnings, helping “free one of the Nation’s most notorious, long-term polluters from jury trials and real liability for their misdeeds,” according to one court filing by objectors.

In contrast, the lawyers who put the deal together with Bayer say it is the best path forward for plaintiffs because without the deal the plaintiffs could be caught indefinitely in a backlog of thousands of cases and never receive any compensation. The threat of a company bankruptcy is also a real possibility, the lawyers supporting the deal have warned.

 “We move forward and will not stop until every Roundup victim who has waited far too long finally gets the justice they deserve.” – Christopher Seeger, plaintiffs’ attorney

One of those lawyers, Christopher Seeger, criticized the objecting plaintiffs’ attorneys for interfering in the deal, issuing a statement following the June 17 order returning the case to St. Louis.

“These objectors … have thrown every procedural obstacle they could find at a $7.25 billion settlement, one of the largest class recoveries in US history,” Seeger said. “We move forward and will not stop until every Roundup victim who has waited far too long finally gets the justice they deserve.”

Bayer issued a statement following the court order, saying the “decision brings much needed clarity to all parties and will enable the class approval process to continue to move forward.”

“Monsanto remains confident that the class settlement, which is supported by plaintiffs’ counsel representing tens of thousands of potential class members, is fair to all parties and the objections have no merit,” the company said.

But Ashley Keller, one of the attorneys objecting to the class action settlement and the one who got the case removed from St. Louis City to federal court last month, immediately filed an appeal of the order.

Keller hopes to keep the case in federal court, because the federal judge overseeing the Roundup “multidistrict” litigation since 2016 has publicly stated his disapproval of the settlement, calling it a “filthy” deal.

Along with Keller, several other plaintiffs’ lawyers representing Roundup plaintiffs are on record with their objections to the class action settlement. Objections have been lodged on behalf of people who are currently suing the company over cancer claims, as well as a “futures class” of people who do not currently have cancer but may develop it in the future only to find their legal options restricted by the terms of the settlement.

Even though someone with Roundup exposure might not show NHL symptoms until a years from now, and even if that person has strong evidence that Roundup exposure caused the cancer, if that person did not opt out of the proposed settlement by June 4 of this year, that person would be “bound by the Settlement’s terms from now into the 2040s,” objecting attorneys stated in a recent court filing.

In a separate strategy aimed at ending the Roundup litigation, Bayer has asked the US Supreme Court to rule that it should be protected from lawsuits alleging it failed to warn Roundup users of a cancer risk.

The company argues that under the Federal Insecticide, Fungicide, and Rodenticide Act, 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.

The court heard arguments in the case in April. A ruling is expected any day.

Featured image by Yunus Tuğ for Unsplash+