US judge rejects $2B Roundup deal, cites 'glaring flaws'

A federal judge turned down on Wednesday a proposed $2 billion deal to resolve future Roundup cases that he found unfairly favors Bayer-owned Monsanto.

U.S. District Judge Vince Chhabria identified "glaring flaws" in the settlement that he concluded is "clearly unreasonable" for people who have been exposed to the weed killer but have not developed non-Hodgkin's lymphoma. He warned, "Mere tweaks cannot salvage the agreement."

"In sum, the settlement proposed by these attorneys would accomplish a lot for Monsanto," he wrote. "It would accomplish far less for the Roundup users who have not been diagnosed with NHL -- and not nearly as much as the attorneys pushing this deal contend."

Lead class attorney Elizabeth Cabraser maintained that a deal for prospective claimants is in their best interest.

"While we are disappointed by the court's ruling today, we continue to believe that a multibillion-dollar class settlement that includes free legal services and substantial compensation to claimants, NHL diagnostic assistance, research into NHL treatment, and Roundup label reform to inform users and the public on all the science regarding a Roundup/NHL link, would provide tremendous financial, health and safety benefits for class members," the Lieff Cabraser Heimann & Bernstein partner said in a statement.

Objectors to the agreement not only argued it is disadvantageous to join the class but that any deal to resolve future Roundup claims is impossible to fairly craft.

"Our position is that you really can't design a class settlement that will adequately cover people who may not develop NHL until 10, 15 years from now," said Behram V. Parekh of Dalimonte Rueb Stoller LLP.

Bayer did not immediately respond to requests for comment.

Chhabria emphasized the difficulties of effectively notifying a "massive, diffuse, and largely transient population of people who have not gotten sick and may not even know of their exposure, and therefore have no immediate interest in putting considerable effort into educating themselves on an exceedingly complex settlement agreement" of the right to opt out of the deal. He found the class notice as currently constructed is severely deficient.

"It should be obvious to any expert or layperson that the proposed notice does a disservice to the group that has not been diagnosed with NHL, potentially misleading them into disregarding a message about a settlement that could substantially diminish their rights if they eventually get sick," he wrote.

Gerson Smoger, who is representing an objector, said class attorneys will not be able to "cure their notice problem."

"Are you going to pay attention to a notice for a cancer you don't have that's going to happen years from now?" the Smoger & Associates PC partner asked.

Parekh echoed skepticism that future claimants can be sufficiently informed to opt out of the deal. "The judge made it pretty clear it's going to be virtually impossible to do a class settlement for people who haven't been diagnosed with NHL yet but may be at some point," he said.

During a marathon Zoom hearing last week, class attorneys pointed Chhabria to the nonmonetary benefits of the deal, namely a medical monitoring program available for about four years designed to increase the chances that Roundup users' cancer will be diagnosed early.

But the judge found that they "greatly exaggerate[d]" the impact of the program because non-Hodgkin's lymphoma typically develops 10 to 15 years after exposure to Roundup and there's no test to detect the cancer before people start experiencing symptoms.

Chhabria also concluded that a $1.3 billion compensation fund is insufficiently financed because it's only designed to last four years and people will likely need money from it far down the road.

"It may even be exhausted earlier by claims from people already diagnosed with NHL," he wrote.

In exchange for these benefits, the settlement forces class members to surrender their right to sue Monsanto for punitive damages. The judge questioned why claimants should agree to the provision given the lofty awards in Roundup trials, pointing to the $20 million in punitive damages awarded to plaintiff Edwin Hardeman in a trial he oversaw.

Another major hang-up for Chhabria in refusing to bless the settlement was the inclusion of a science panel forcing class members to agree to its determination on whether exposure to Roundup can cause non-Hodgkin's lymphoma.

"At present, the playing field on the issue of expert testimony related to causation is slanted heavily in favor of plaintiffs," he wrote. "Thus, agreeing in advance to admit the opinion of a court-blessed panel that might undercut the opinions of the plaintiffs' experts is a significant concession for the class members -- one that could greatly reduce their chances of winning. And again, it would reduce settlement value.

Bayer has lost the causation debate in all three Roundup trials.

Monsanto faces another trial scheduled to start on July 19 in San Bernardino County Superior Court.