SAN FRANCISCO (CN) — A federal judge may restart litigation over claims that Roundup causes cancer after attorneys representing 2,200 plaintiffs said Bayer-owned Monsanto reneged on a deal to settle their cases.
"I've received several confidential letters from plaintiffs' counsel. The upshot of those letters is that counsel is expressing concern that Monsanto is maybe welching on its deal with them,” U.S. District Judge Vincent Chhabria said at the outset of a case management conference Thursday.
Bayer, which purchased the agrochemical company Monsanto in for $63 billion in 2018, is currently in the throes of negotiating settlements with some 4,000 plaintiffs who are part of a federal multidistrict litigation before Chhabria.
But a new wrinkle was introduced when Bayer in June announced plans to settle 125,000 claims nationwide for $10 billion. Special Master Kenneth Feinberg, who is managing the settlement process, said nearly 32,000 have been settled under that agreement.
Chhabria has not yet signed off on that proposed settlement for cases pending in his court, citing as a major sticking point a provision making future class actions contingent on the findings of a scientific panel on whether individual cases of cancer were likely caused by the chemical.
There are 4,000 cases in the multidistrict litigation in Chhabria’s court. Of those, 667 have reached settlements in principle, though the plaintiffs have not yet been paid.
The rest are still unresolved.
“I was told we had a deal, that it was approved. But the simple fact is we're not settled and as of today they have completely terminated the agreement,” attorney Brent Wisner told Chhabria Thursday.
He is one of at least three attorneys who outlined their concerns in letters to Chhabria ahead of Thursday’s conference. The others are attorneys Aimee Wagstaff with Andrus Wagstaffe and Jennifer Moore with Moore Law Group, whose deals with Bayer remain in limbo.
Wisner of the Baum Hedlund firm said he had signed a term sheet with Bayer months ago and that both sides had been working out procedural details for how the settlement would be administered since May.
“I signed it and sent to them, and then on Aug. 19, they terminated the term sheet and with that the terms that we had been settling,” Wisner said. “It has become clear to me that when I was told we had an agreement, either they didn't have the authority to tell me that when they said it to me, or they've reneged on it. In either case there's no agreement anymore.”
Moore said she called Bayer in June after the settlement was announced with concerns about how the mass settlement would affect her clients.
"When the announcement was made, I had a call with Bayer and expressed my concern that we did not have a fully executed master settlement agreement. At that time, I was assured that was not an issue,” she said. “If I'd known then what I know now I would not have agreed to that public announcement.”
Chhabria halted the multidistrict litigation during the settlement process and was exasperated to hear it is at a standstill.
But Bayer attorney William Hoffman characterized the delay as a “slight hiccup” in negotiations as Bayer focuses on the “holistic” settlement unveiled in June.
”What we have here is something that occurs in a lot of high stakes negotiations — a speed bump, a slight hiccup, a change in circumstance that led one party to put things on hold temporarily and see if they can put the package they desire back together. That's what we're working on right now,” he said.
Chhabria wasn’t swayed. “I thought the settlements were done. I put the litigation on hold so you could dot your i's and cross your t’s on the statement you already negotiated,” he said.
Hoffman replied, “Frankly, it has become more complicated,” and proposed the parties move down two tracks — working with Feinberg to get the cases resolved while developing a plan in the next 30 days to reboot litigation.
Wisner said he was eager to get back to court and that he didn’t believe the 30 days was necessary. He currently has four cases pending before Chhabria.
“I have clients who have cancer. They are dying and every time they die it fundamentally changes the dynamics of their case. I have an obligation to push those cases forward,” he said. “Frankly, I don't think they've been honest with me in the process and I'm tired of it. I’m not angry, I just want to litigate. I don't think we need a 30-day process to negotiate a plan. Just lift the stay and we'll start serving discovery.”
Wisner said he is open to negotiating a settlement, but favors getting his cases set for trial in the meantime.
“I have no objection to Mr. Feinberg doing his wizardry to try to get these cases resolved. He's the best in the business but in conjunction with Mr. Feinberg's efforts, let's restart this litigation.”
Chhabria seemed to be on the same page, and even suggested setting the next case for a jury trial over Zoom in 2021.
“I don't care whether these cases settle,” Chhabria said. “My job is not to settle cases. My job is try cases.”
He said he didn’t want the threat of litigation to be used as a pawn in settlement negotiations, however.
“I'm concerned that Monsanto may be manipulating this litigation process to its advantage somehow in these settlement negotiations you all are having,” he said.
“There are no shenanigans, no manipulations going on here,” Hoffman assured the judge. “We are trying in good faith to wrestle to the ground an extraordinarily large and complex settlement process. The last thing I would do is try to manipulate that process.”
In a statement, Bayer echoed this is a bump in the road.
"A mass tort settlement of this size and complexity can take significant time before it is fully executed, and we are still early in this process. There are often some bumps in the road in implementing a resolution of this magnitude, but we remain confident that a comprehensive settlement will be finalized and executed. Indeed, while we support the court’s dual track approach over the next 30 days, we are optimistic that the finalization of the settlements over this time will make any further steps on the litigation track unnecessary,” the company said.
Chhabria said he would not lift the stay, as he has “great confidence” in Feinberg’s ability to reach a resolution in 30 days. But he said it would not extend the stay any further. In the meantime, he said, the parties should “start working on a plan for getting litigation back on track,” which they should present at the next case management conference on Sept. 24.
He also said the letters submitted confidentially to the court by the plaintiffs’ attorneys should be made public.
“This case is a matter of significant public interest,” he said. “To the extent that plaintiffs are concerned that Monsanto is going back on the deal they announced in June, that is not something that should be kept confidential.”
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