Roundup weedkiller on shelves at Walmart in Baltimore, MD. March 14, 2020. Photo: Diego M. Radzinschi/ALM
Bayer has agreed to thousands of legal settlements over Monsanto's weed killer Roundup after a federal judge raised questions about a deal pegged at up to $10.9 billion which had failed to resolve all the litigation, according to a court filing on Thursday.
In a case management statement, filed in the multidistrict litigation in the Northern District of California, lawyers wrote that "master settlement agreements have now been reached" with three leading plaintiffs' firms, resolving about 12,000 Roundup cases in state and federal courts. The filing comes after U.S. District Judge Vince Chhabria of the Northern District of California, who oversees the multidistrict litigation, called a hearing last month to discuss the settlement after receiving numerous confidential letters from plaintiffs' attorneys insisting that Bayer had reneged on their agreements.
"Since the August 27, 2020 case management conference, the parties have continued to engage in settlement discussions," the lawyers wrote on Thursday. "Significant progress has been made."
Chhabria has set a Sept. 24 hearing in the MDL.
On June 24, Bayer announced it had resolved 75% of the 125,000 Roundup claims for as much as $10.9 billion.
But at the Aug. 27 hearing, Kenneth Feinberg, whom Chhabria had appointed as special master, said fewer than 32,000 cases actually had resolved, about 12,000 of which were in state courts, not the MDL before Chhabria.
Chhabria, who had imposed a 90-day stay on the Roundup litigation in light of the settlement, raised the prospect that litigation might go forward, including potential trials, if the lawyers couldn't work out the deals by the end of this month.
"What I am concerned about is that Monsanto may be manipulating this litigation process to its advantage somehow," he said at the Aug. 27 hearing. "My only concern is that I don't want the litigation to be used as a pawn in settlement negotiations, either way. I don't want them to manipulate, or take advantage, and use to their advantage a stay in the litigation, and I don't want lifting of the stay to prompt settlement."
One of the lawyers whose cases had not settled was R. Brent Wisner, of Los Angeles-based Baum, Hedlund, Aristei & Goldman, who obtained Roundup verdicts of $2 billion in 2019 and $289 million in 2018, both in California state courts. At last month's hearing, he told Chhabria that Bayer, on Aug. 19, abruptly terminated the term sheet in a master settlement agreement he had been negotiating since March.
On Monday, Wisner was one of three lawyers who filed redacted versions of the letters they had written to Chhabria, along with statements that they had reached settlement agreements. Another lawyer was Aimee Wagstaff, of Andrus Wagstaff, who is co-lead counsel in the Roundup MDL, and a third, Jennifer Moore, of Moore Law Group, was co-counsel with Wagstaff in a third trial that ended in an $80 million jury award in 2019.
Of the 3,700 lawsuits in the MDL, both sides were "actively engaged in ongoing settlement discussions" for 1,041 of the 1,954 cases that had not yet settled.
"Additionally," according to Thursday's filing, "Monsanto continues to finalize settlement agreements with numerous other law firms."
Both sides requested Chhabria extend his stay to Nov. 2, but, in the event he allows litigation to go forward, Bayer split with plaintiffs' lawyers on trials. Plaintiffs' lawyers asked that a bellwether trial that has not settled "should be set for trial as soon as practicable in light of COVID." Bayer preferred to wait for a summary judgment ruling in the case, but did not object to "an in-person trial before this court as soon as circumstances allow."
"Monsanto objects to a virtual trial given the many complications of trying a case remotely," the filing says.
Bayer continues to appeal Roundup verdicts. The U.S. Court of Appeals for the Ninth Circuit is reviewing the $80 million award, the first bellwether trial in the multidistrict litigation, on Oct. 23. Last month, both sides petitioned the California Supreme Court to review the 2018 award, which an appeals court reduced to $20.5 million.
Amanda Bronstad
Amanda Bronstad is the ALM staff reporter covering class actions and mass torts nationwide. She writes the email dispatch Law.com Class Actions: Critical Mass. She is based in Los Angeles.