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Monday, July 22, 2024 | Back issues
Courthouse News Service Courthouse News Service

Herbicide Tab for Dupont at $380M and Growing

(CN) - DuPont had already paid about $380 million to resolve claims over its banned weed killer, and it is slated to give $6.5 million more, a federal judge said, giving a settlement final approval.

In July 2011, a class sued E. I. du Pont de Nemours and Co. in Wilmington, Del., several months after it introduced Imprelis, a new herbicide designed to kill unwanted weeds without harming nontarget vegetation, but that allegedly kills spruce, pines and other evergreens, costing people "millions of dollars" nationwide.

Within about a month, at least 17 similar class actions had been filed , and the Environmental Protection Agency soon barred DuPont from selling the herbicide.

Though DuPont started its own claim-resolution process in September 2011, lawsuits piled up, alleging fraud, violations of the Consumer Protection Act, and many state-law claims.

The company eventually settled with the owners of property on or next to which Imprelis was used from August 2010 to 2011. That settlement provided a May 2015 warranty on replacement trees, tree care and maintenance payments, as well as an extra 15 percent for incidental damages. It bars the claimants, however, from seeking environmental or personal injury damages. DuPont will also remove damaged trees or pay for their removal.

Individuals who applied Imprelis to their own property will be reimbursed up to $2,000 for time spent investigating tree damage.

The settlement will also compensate workers hired to apply Imprelis on others' property prior to September 2011. It is possible for these claimants to participate in the Imprelis recall program, but they cannot recover lost profits or damages arising from suits brought against them.

DuPont will pay up to $6.5 million in attorneys' fees and $500,000 in costs, $1,500 to each property-owning class representative, and $2,500 to each commercial class representative, plus unlimited administration expenses.

After preliminarily approving the settlement in February, U.S. District Judge Gene E.K. Pratter granted final approval last week, noting that nearly 69,000 potential class members were directly notified by the date the approval motion was filed.

"A total of 24 timely objections were received, and 581 plaintiffs opted out of the settlement," Pratter wrote. "Thus, the percentage of objectors and opt-outs - less than 1 percent - is extremely low."

Most objectors merely pined for more dough, according to the ruling.

"These objections do not sufficiently appreciate the fact that this is a settlement, not an award that will necessarily make all of the claimants whole for any damages incurred," Pratter wrote (emphasis in original). "Indeed, the very nature of a 'settlement' is that it represents a compromise, not full compensation for all potential damages that could be awarded in a successful lawsuit."

The judge also tossed aside concerns that the herbicide will harm heavily wooded properties long after the warranty expires.

"The court understands that there is some uncertainty as to the long term effect of Imprelis, particularly as Imprelis in trees dissipates more slowly than Imprelis in soil," Pratter wrote. "However, the strength of the plaintiffs' experts' endorsement of the warranty should give class members some comfort, and class members once more are reminded that a settlement does not by its very nature guarantee full compensation for all harm."

DuPont has already paid out more than $377 million to about 25,000 claimants, the ruling states.

"The court accepts that the settlement here is reasonable, in view of the long, winding and contentious road plaintiffs would have to travel to recover damages at trial," Pratter wrote.

DuPont reportedly netted about $4.22 billion in sales last year.

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