Litigation against Monsanto involving the herbicide Roundup and claims that it causes Non-Hodgkin’s Lymphoma (NHL) has received significant attention. The parties to that litigation announced a $10 billion settlement earlier this year of individual claims, and this summer the parties sought approval of a class-action settlement from the federal court overseeing the Roundup multidistrict litigation (MDL). The proposed class-action settlement and the court’s implicit rejection of it provide guidance to attorneys working to resolve highly complex litigation that involves developing science and potentially thousands of future claimants.
In the class-action settlement, the parties proposed five key components:
- a $1.1 billion payment by Monsanto;
- creation of an independent panel of scientists who would evaluate and provide a definitive and binding answer to the question whether Roundup caused NHL;
- creation of a grant program for individuals exposed to Roundup that offers testing for NHL and early diagnosis for medically-underserved populations;
- a grant program to provide interim relief for class members diagnosed with NHL (this component would consist of at least $650 million of the $1.1 billion payment); and
- funding for the research into the diagnosis and treatment of NHL.
See Motion for Preliminary Approval of Class Settlement, In re Roundup Prods. Liab. Litig., No. 3:16-md-02741-VC, (N.D. Cal. June 24, 2020), ECF No. 11042.
The second component—the creation of a scientific panel to render a binding decision on the class and Monsanto—is the most novel aspect of the proposed settlement. The panel would have four years to complete its research and provide an answer to whether “it is more likely than not” that Roundup causes NHL and, if so, at what dose level the causal relationship exists. Id. at 10–11. The panel’s finding would have issue-preclusive effect in future Roundup litigation between any settlement class member and Monsanto. In other words, if the panel concluded that there was no causal link between Roundup and NHL, that finding would presumably end any future litigation by a class member. But if the panel concluded there was a causal link, that finding would be binding on any claim brought by a class member following the panel’s determination.
Despite the proposed settlement’s thorough and impactful approach, the judge overseeing the Roundup MDL expressed significant skepticism that the settlement would ever obtain the court’s approval. Pretrial Order No. 214, In re Roundup Prods. Liab. Litig., No. 3:16-md-02741 (N.D. Cal. July 6, 2020), ECF No. 11182. Prior to any hearing on the motion to approve the settlement, the court identified what it believed to be potentially fatal flaws in structure of the proposed settlement, including:
- questioning the constitutionality of having a panel of scientists resolve the causation question for the class;
- expressing skepticism that class members would benefit from the settlement when jurors were awarding verdicts to plaintiffs who filed individual claims;
- doubting the appropriateness of locking in a determination on causation when the science could change over time; and
- noting the unlikelihood that class members would have any meaningful opportunity to determine whether it was in their best interest to join the settlement class.
Id. at 3.
The MDL court has since extended the time for the parties to resolve the Roundup cases, and Bayer indicated that it intended to modify the portion of the class settlement that required an independent panel of scientists to resolve the questions of causation. Reuters, Bayer Resolves More Roundup Cases (Sept. 24, 2020). Given the status of the litigation, it seems likely that the parties will propose a modified class settlement structure. How the court addresses that settlement—and whether it is ultimately approved—will provide meaningful guidance on using novel approaches for class settlements in highly complex litigation.