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.”
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