Seven large agricultural sprayers work side by side in a lush green cornfield, applying treatments to the growing crop.
SAN FRANCISCO - Some of the nation’s most prominent plaintiff law firms are at war over a $7.25 billion settlement of Roundup claims that proponents say is the best deal available and opponents decry as an “abuse of the class action form.”
A federal judge in California is scheduled to hear arguments tomorrow on whether to issue an injunction blocking what lawyers at Weitz & Luxenberg call “oppressive and unconstitutional” features of the settlement negotiated by rival law firms Seeger Weiss and Motley Rice. That deal, announced in February, would pay present and future claimants $6,000 to $165,000 in exchange for renouncing any claims against Monsanto, the Bayer AG unit that sells glyphosate weedkiller. A state-court judge in St. Louis tentatively approved the agreement March 4.
Plaintiffs and their lawyers may feel pressured to accept Monsanto’s offer since the U.S. Supreme Court heard arguments Monday in a case that will decide whether lawsuits blaming Roundup for non-Hodgkin’s lymphoma are preempted by federal pesticide labeling law. Nearly all the cases accuse Monsanto of failing to put a cancer warning on the Roundup label, which Monsanto says would be illegal since the Environmental Protection Agency has determined the herbicide doesn’t cause cancer.
Plaintiff lawyers have spent tens of millions of dollars advertising for Roundup clients and filed more than 70,000 lawsuits concentrated in Missouri, where Monsanto is based. Several thousand cases are in multidistrict litigation in federal court overseen by U.S. District Vince Chhabria, who in 2021 rejected a similar $2 billion settlement of future claims as inadequate.
Most of the cases claim even trivial exposures to Roundup can cause non-Hodgkin’s lymphoma, a common cancer closely associated with aging. The Supreme Court has ruled against class action settlements that fail to take into account the claims of people who aren’t yet sick, and since NHL is one of the most common cancers and glyphosate one of the most common herbicides, there are “countless millions” of potential future claimants, Weitz & Luxenberg said in a filing.
At tomorrow’s hearing, Weitz & Luxenberg will ask Judge Chhabria to prevent the court in Missouri from dragging current plaintiffs and future claimants into the state-court settlement without adequate safeguards. The agreement negotiated by Seeger Weiss and Motley Rice has unusual terms including an opt-out procedure that requires claimants to sign their forms in ink and prohibits lawyers from submitting multiple opt-out forms at once.
Such features are designed to prevent rival law firms from undermining the settlement by submitting thousands of forms removing their clients from the deal. A side agreement allows Monsanto to walk away from the settlement if too many people opt out, with the exact number secret.
“The plan seeks to rope in tens of thousands of Roundup victims who already have lawyers… as well as countless millions of people who are not yet sick,” Weitz & Luxenberg said in a filing in federal court.
Seeger Weiss and Motley Rice called their rivals “two outlier law firms representing a small number of Roundup plaintiffs” and said a federal judge has no authority to interfere in state court proceedings. If Judge Chhabria issues an injunction, they said, it “would jeopardize a settlement that, if approved, would deliver billions of dollars of compensation to tens of thousands of plaintiffs, at a critical time when all Roundup plaintiffs are at risk from the forthcoming Supreme Court decision on preemption.”
At Monday’s Supreme Court hearing, justices asked probing questions of both sides. They questioned Monsanto’s argument it can’t comply with federal law and while protecting itself against state-court lawsuits by putting a cancer warning on the label. But one of the goals of the federal statute, spelled out in a section heading, is “uniformity.”
Justice Brett Kavanaugh asked a lawyer for the plaintiffs: “Do you think it's uniformity when each state can require different things?”
If the Supreme Court rules for Monsanto, plaintiffs who hold out for better terms may be out of luck. Their lawsuits claim they wouldn’t have used Roundup if they had been informed of the risk. The International Agency for Research on Cancer has declared glyphosate a probable carcinogen, but regulators in the U.S. and other nations disagree. IARC, whose findings are frequently cited by U.S. plaintiff lawyers, also considers talcum powder, cellphones and processed meat definite or likely carcinogens.
In its request for an injunction, Weitz & Luxenberg said St. Louis judge Timothy J. Boyer “rubber-stamped” the settlement soon after it was negotiated. Monsanto would pay out $7.25 billion over 16 years to people diagnosed with NHL on a sliding scale weighted toward claimants with occupational exposure.
The agreement includes features that may run afoul of Supreme Court precedent, including its landmark Amchem decision in 1997 striking down a proposed class action settlement of asbestos claims because it failed to provide adequate compensation for future claimants.
The Monsanto settlement includes a “Subclass 2” of people exposed to Roundup who haven’t been diagnosed with NHL, yet only promises payments for 16 years and makes opting out of the class difficult. All the opt-outs must be submitted by June 4 and must include detailed personal information, and both Monsanto and lawyers at Seeger Weiss and Motley Rice can challenge opt-out forms in an undisclosed procedure.
In another feature designed to encourage participation, lawyers who weren’t involved in the settlement negotiations can apply for the “likely multi-hundred-million-dollar fee award,” but only if they sign a declaration the agreement is fair and they will convince their clients to accept it. No fees will be paid to lawyers who represent more than 25 opt-outs or work with lawyers who are still suing Monsanto. And while class members will be paid out over years, legal fees are front-loaded, with the money flowing as soon as May 7.
“It is implausible that most or any these cancer victims or their family members, who have longstanding attorney-client relationships and approaching trials, will suddenly want to drop out to take the lowball offers—likely less than the expenses they have already incurred in marshalling the requisite proof of causation—that would be forced on them by operation of the proposed class settlement,” Weitz & Luxenberg said in its filing in federal court.
