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Wednesday, June 12, 2024 | Back issues
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Roundup warning label settlement on thin ice with judge

U.S. District Judge Vince Chhabria said the class notice does not make it clear that those who accept $10 payments for buying Roundup can still sue Monsanto if they later develop cancer.

SAN FRANCISCO (CN) — A federal judge told lawyers looking to settle labeling claims with Roundup maker Monsanto that their class notice should “scream from the mountaintops” that consumers looking to participate won’t have to give up their right to sue if they later develop cancer.

Last year, the Bayer-owned agrochemical company agreed to pay between $23 million and $45 million to resolve claims that purchasers, led by plaintiff Scott Gilmore, overpaid for Roundup because it lacked a cancer warning label. Under the nationwide settlement, Bayer would compensate 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 at a preliminary approval hearing held Thursday over Zoom, U.S. District Judge Vince Chhabria said he doesn’t believe the settlement confers much of a benefit to consumers.

“If you look at it from the standpoint of deterrence, sort of remedying the alleged wrongdoing that Monsanto committed by not warning people about the product, there’s no real value to the settlement from that standpoint. It’s like Monsanto taking a penny out of its pocket to get rid of what is essentially a nuisance lawsuit. Of course the people who do benefit significantly are the plaintiffs’ lawyers who would presumably stand to cover a significant fee award.”

But he was really concerned about that the class notice is confusingly vague about consumers’ rights.

“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.

He said that if 0.1% of class members were confused by the class notice, the settlement “would have to be rejected for that reason alone.”

Consumer attorney Gillian Wade, whose Los Angeles firm Milstein Jackson represents the purchaser class, assured Chhabria that the settlement preserves members’ future rights to sue if they have cancer or develop cancer in the future from using Roundup. “The intent and actually reality of the settlement is it absolutely does not release anything have to do with personal injury.”

After reading the notice aloud at Chhabria’s behest, the judge seemed unconvinced. “You think that is clear to a layperson? I believe that if a settlement like this is going to occur it needs to be much, much more clear. It needs to scream from the mountaintops that if you participate in this settlement and later get sick from non-Hodgkin lymphoma your participation in this settlement does not preclude you from suing Monsanto.”

He also voiced qualms over the $45 million ceiling. “It strikes me that there's a least a possibility that in a case like this, the record at final approval could potentially reveal that the settlement is not reasonable even if it appears reasonable now.
What if enough people submit claims that even if they were only recovering the minimum amount they could recover without submitting proof of purchase, what if the number of claims submitted would call for the payment of $300 million? Wouldn't that be pretty strong evidence that the agreement you reached with Monsanto was not reasonable because it's so inadequate?”

“Yes, absolutely, that would suggest that the amount of the settlement is not adequate,” Wade said. “I agree 100%.”

Representing Monsanto, Winston Strawn attorney John Rosenthal said he agreed that the amount would have to be examined by the court if it reaches that point, though “it doesn’t reflect our experience either within false advertising cases as a general matter much less our experience in the context of Roundup cases.”


“So for now it’s just a matter of assessing whether the projection you’ve made is reasonable,” Chhabria said. “Did you take into account the fact that Roundup has gotten so much publicity and a notice about recovering money form Monsanto based on Roundup use is far more likely to catch the eye of the consumer than the typical notice somebody might get for multivitamins or whatever?”

Wade said they had. “I hope it gets that result. My experience has been that no matter how good the case is it’s still relatively low, unfortunately. If it happens and we get way more claims than we accounted for, I would be thrilled.”

Chhabria took the motion for approval under submission.

“We continue to believe that the nationwide advertising class settlement in Gilmore is fair and reasonable and we will await the court’s written opinion," Bayer said in a statement following the hearing. "It is common for courts to request some adjustments to class settlements, and we intend to work with class counsel to the extent the court raises any issues regarding the settlement. We look forward to continuing to work with the court and the parties through the approval process."

The latest settlement is a drop in the bucket for the billions of dollars that Bayer has agreed to pay to settle cancer claims stemming from Roundup use.

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.

In 2019, Chhabria oversaw the first federal trial on claims Monsanto sold Roundup without a warning label, after which a jury awarded a Sonoma man $75 million in punitive damages after finding that years of Roundup use likely caused his non-Hodgkin lymphoma. The Ninth Circuit upheld the jury’s verdict in 2021, though it agreed with Chhabria that the punitive damages should be reduced to $20 million.

The U.S. Supreme Court requested input from the Solicitor General in the case on the question of whether Monsanto can be held liable under California law for failing to put a cancer warning label on Roundup when it was prohibited from doing so by the Federal Insecticide, Fungicide, and Rodenticide Act, which says a company cannot put a warning on a product without the U.S. Environmental Protection Agency’s approval.

“Indeed, the U.S. expert agency, the Environmental Protection Agency, has consistently found that glyphosate-based herbicides can be used safely and are not carcinogenic, and has stated that a cancer warning would be false and misleading and misbrand the product,” Bayer said in a statement after the high court asked the Solicitor General to weigh in.

Following the California Supreme Court’s refusal to hear its appeal last year, Bayer has asked the high court to review a California jury’s $86.7 million damages award for a Livermore couple stricken with cancer after years of spraying Roundup.

Alameda County Superior Court Judge Winifred Smith ultimately slashed Alva and Alberta Pilliod's award to $86.7 million, and an appellate court affirmed it in an August order where Justice Marla Miller wrote that “Monsanto’s continuing to sell Roundup after learning that the original approval studies were invalid shows conscious disregard for public health and safety.”

“The California state court’s decision in Pilliod warrants review by the U.S. Supreme Court because the state-based failure-to-warn claims at the center of the case are preempted by federal law and the punitive damages award is excessive and violates the U.S. Constitution," a Bayer spokesperson said following its filing of a petition for certiorari. The company said its the first Roundup case to challenge the constitutionality of a punitive damages award in the U.S. Supreme Court.

After Thursday's hearing, Chhabria issued a memo saying he'd forgotten to ask about the two cases before the Supreme Court and instructing the parties to answer whether the proposed settlement would be affected by any Supreme Court actions. He wrote, "The court assumes that any action taken by the Supreme Court after final approval could not impact this settlement. If that is not accurate, the parties should correct the court’s understanding."

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Categories / Business, Consumers, Environment

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