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Judge gives initial blessing to Roundup labeling settlement

A federal judge said he was inclined to approve the deal worth up to $45 million on the condition that the class notice make clear that those who take the deal can still sue Monsanto if they later get cancer from using Roundup.

SAN FRANCISCO (CN) — A federal judge said Wednesday that he will greenlight a nationwide settlement reimbursing consumers for their Roundup purchases on the condition that it makes abundantly clear that they can still sue the manufacturer if they develop cancer.

“The court is inclined to preliminarily approve the proposed class settlement so long as it does not run the risk of confusing anyone about their future right to sue Monsanto if they suffer injury or sickness from using Roundup,” U.S. District Judge Vince Chhabria wrote in a one-page order late Wednesday.

His ruling also echoed the misgivings he expressed about the class notice at a preliminary approval hearing April 14.

“As was discussed at the hearing, the current notice is inadequate in this regard, as it does not clearly inform potential class members that if they participate in the settlement, they will retain the right to sue Monsanto based on any illness or injury they may suffer now or in the future as a result of using Roundup,” he wrote, ordering both sides to submit revised notices within 28 days. “The revised notices must clearly and conspicuously inform potential class members that, if they were to develop non-Hodgkin lymphoma or any other injury or illness, their ability to sue Monsanto based on that injury or illness would not be affected by the settlement.”

Attorneys representing class members did not immediately respond to requests for comment.

The Bayer-owned agrochemical company agreed last year to pay between $23 million and $45 million to resolve a false advertising class action brought by lead plaintiff Scott Gilmore, who claimed that consumers overpaid for Roundup because it lacked a cancer warning label.

The deal compensates class members for up to 20% of the average retail price of up to 11 Roundup products, paying anywhere between $0.50 and $33.00 per bottle depending on the size of the product, without receipts. Proof of purchase would allow consumers to claim unlimited bottles.

But Chhabria said the proposed class notice was unclear about preserving consumers’ rights to pursue personal injury claims in the future.

“If we’re going to approve a settlement like this we’d better make darn sure that the settlement process is not going to confuse anybody into believing they have given up their rights to sue Monsanto if they develop non-Hodgkin lymphoma,” he said, adding that if 0.1% of class members were confused by the class notice, the settlement “would have to be rejected for that reason alone.”

The agreement comes as Germany-based Bayer, which purchased Monsanto for $63 billion in 2018, looks to resolve thousands of claims that its signature weedkiller causes non-Hodgkin lymphoma.

In June 2020, Bayer agreed to pay $10.9 billion to settle nearly 100,000 lawsuits in which plaintiffs claim Roundup’s active ingredient glyphosate caused them to develop cancer. But Chhabria refused to approve another $2 billion deal to resolve future claims from Roundup users who have not developed cancer but may be diagnosed in the future.

Bayer has also vowed to remove glyphosate-based products from retail store shelves by 2023 to prevent future litigation, though the company has consistently said that it stands behind Roundup’s safety.

“We are encouraged that the court is inclined to preliminarily approve the proposed class settlement in Gilmore, and we will confer with class counsel to address the notice issue raised by the court," a Bayer spokesman said in an emailed statement following Chhabria's ruling. "We look forward to continuing to work with the court and the parties through the approval process.”

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