Article

by Carey Gillam

In a bold bid to put costly US Roundup litigation behind it, Bayer on Tuesday announced a $7.25 billion proposed class action settlement for users of its glyphosate-based weed killing products who have cancer now or develop cancer in the next several years, with average awards ranging from $10,000 to $165,000.

Such a settlement would include people currently suing the company and Roundup users who have not yet sued the company but may want to do so in the future. Tens of thousands of people have sued the company alleging exposure to the weed killers caused them to develop non-Hodgkin lymphoma (NHL).

Bayer said the potential to get agreement on a class action settlement plan now was boosted by the decision by the US Supreme Court to agree to hear Bayer’s arguments that it should not be subject to lawsuits by people claiming the company failed to warn them of cancer risks associated with glyphosate herbicides if federal regulators didn’t require such a warning.

Bayer CEO Bill Anderson said in a media and investor briefing that the potential for a Supreme Court ruling favoring Bayer is an “important incentive for people to participate in the class”.

“The proposed class settlement agreement, together with the Supreme Court case, provides an essential path out of the litigation uncertainty and enables us to devote our full attention to furthering the innovations that lie at the core of our mission: Health for all, Hunger for none,” Anderson said in a statement. “The class settlement and Supreme Court case are both necessary to help bring the strongest, most certain and most timely containment to this litigation.”

Anderson said the company blames a “broken” system that has allowed for the costly litigation, and said that “glyphosate is a safe and essential tool for farmers in the US and around the world.”

Terms of the deal

The proposed settlement covers people who know they were exposed to a Roundup product because they themselves purchased or applied the Roundup products, according to the court filing laying out the details. Compensation will be tiered and awarded  based on the nature and extent of a class member’s exposure, age at the time of NHL diagnosis, and type of NHL. No other cancers are included, only NHL.

According to the proposed settlement, an occupational user of the company’s glyphosate herbicides diagnosed with an aggressive type of NHL younger than 60 years old could see a payout of $165,000 on average. Individual awards could vary from the average from 80% to 120%, according to court filings. The company is also proposing much smaller awards through a “Quick-Pay” program for certain cases.

The company requires that the “vast majority” of plaintiffs participate in the settlement in order to go forward, said Anderson. The company will make up-front and annual payments into a settlement fund for 17-21 years, according to the settlement terms.

Average proposed compensation in Bayer class action settlement proposal.

The terms of the deal requires court approval.

Motley Rice, one of the plaintiffs’ law firms involved in negotiating the settlement, said new lawsuits are “arriving daily,” while tens of thousands of lawsuits are moving through courts, and it was difficult to get trial dates on “crowded dockets.”

“I believe this $7.25 billion proposed national class settlement … is the best path forward to finally bring the Roundup litigation to a closing chapter,” Motley Rice co-founder and settlement negotiator Joseph Rice said in a statement.

Rice said that both occupational and residential exposures are covered in the proposed settlement and payments could begin this year.

Bayer has been fending off over 100,000 lawsuits since buying Monsanto in 2018 and so far has paid more than $11 billion in settlements and jury verdicts to tens of thousands of people suffering from NHL they blame on exposure to Roundup and other Monsanto glyphosate-based herbicide brands. At the core of those lawsuits are claims that the company failed to warn users of the risk of cancer.

Bayer previously sought court approval for a similar class action settlement but US Judge Vince Chhabria, who oversees the sweeping multidistrict Roundup litigation proceedings in the Northern District of California, shot down the proposal, citing “unreasonable” and unfair terms for cancer sufferers. Anderson said Tuesday that Bayer had learned from the failed prior class action settlement.

Plaintiffs’ attorneys not involved in negotiating the settlement said they had to analyze the details before they could say if they were supportive of the proposed deal.

“We’re generally supportive of a fair deal for our clients that provides them closure in all respects,” said Majed Nachawati, whose firm represents about 5,000 Roundup plaintiffs.

Bayer said separately, it has also reached agreements to settle certain other Roundup lawsuits. In total, also taking into account the costs of cases over PCB contamination cases, the company said its provision and liabilities for litigation to 11.8  billion euros,  including 9.6 billion euros for glyphosate.

SCOTUS hearing

The US Supreme Court has set a hearing on the failure-to-warn question for April 27.

Bayer maintains that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) which governs the registration, distribution, sale, and use of pesticides in the United States, preempts failure-to-warn claims against the company.  Because the Environmental Protection Agency (EPA) has approved labels with no cancer warning, failure-to-warn lawsuits should be barred, the company says.

Plaintiffs’ lawyers maintain that the law does not preempt such lawsuits, and has precedent and multiple court rulings backing that position.