Bayer Confronts Judge’s Deadline as Roundup Settlements Lag

Bayer AG is up against a fast-approaching deadline to settle remaining lawsuits over its Roundup weedkiller or face the prospect of a judge restarting the process of sending the cases to trial.

The judge reaffirmed last week that a Nov. 2 deadline looms as the company reported “significant progress” on settlements, having finalized accords to resolve about 44,000 U.S. lawsuits, or about 35% of the more than 125,000 filed and unfiled cases alleging the herbicide causes cancer. In June, it said it had reached agreements in 75% of the cases, or about 94,000, as the centerpiece of an $11 billion comprehensive settlement.

U.S. District Judge Vince Chhabria in San Francisco, who is overseeing about 1,000 unresolved cases, added pressure by telling lawyers he will move at full speed to set trials once the deadline passes. At least one case is ready for trial -- if Bayer doesn’t manage to win dismissal of it -- and a handful of others could be scheduled quickly if they don’t settle as expected.

After Bayer lost the three Roundup trials in 2018 and 2019 with average awards of almost $50 million per plaintiff that sent its stock into a downward spiral, the company can ill-afford another loss. Chief Executive Officer Werner Baumann’s contract was extended this month for three years in a vote of confidence by his board.

“What we need to do is get on our bicycles and keep moving forward,” William Hoffman, a lawyer for Bayer, told the judge Thursday.

Ken Feinberg, the court-appointed mediator overseeing settlement negotiations, told Chhabria that he’s confident it won’t be necessary to send any cases to trial. “They will be settled,” he said.

A month ago, Chhabria excoriated the company after some lawyers complained that the company was reneging on deals. The judge said it looked as if Bayer may be manipulating the settlement process to its advantage.

Since then, Bayer has reached an additional 12,000 key settlements on top of the 32,000 it previously disclosed. Those accords include the firm of R. Brent Wisner, of Los Angeles-based Baum Hedlund, who won two trials against Bayer, resulting in verdicts of $289 million and $2 billion that were later reduced.

Bayer lost an appeal of one of the cases and is challenging the other, along with a third verdict in Chhabria’s court. Bayer maintains that Roundup is safe.

The company said in a statement Wednesday that its progress “is consistent with our commitment to pursue a holistic settlement to the Roundup litigation” and that it’s working with plaintiffs’ lawyers to resolve the outstanding cases.

“It is not unusual that a settlement of this size involving a large number of law firms can take months before it is finalized,” the company said.

The Nov. 2 date on which cases in federal court are no longer on hold for negotiations doesn’t apply to state court suits, which comprise the vast majority of Roundup cases.

Bayer told Chhabria last month that its progress was impeded by the judge’s July rejection of its plan to use $1.25 billion of the settlement fund to resolve future Roundup lawsuits. The explanation drew a sharp rebuke from Chhabria, who reminded Bayer that he only put the litigation on hold because he thought the settlement was completed.

At the time, Hoffman said the company agrees to a plan to resume trials “if we’re not able to put Humpty Dumpty back together again.”

To Thomas Rhoback, a corporate trial lawyer at Axinn in New York who has followed the litigation, the difference between Bayer’s press release in June and its actual settlement tally amounts to “a big disconnect.”

“You’re looking at two points in time, and two very different statements,” Rhoback said.

Fletch Trammel, a Texas-based lawyer with 5,000 Roundup cases in state court, said he didn’t trust Bayer’s announcement three months ago. His reaction to the June deal may be a reflection of how much work the company has ahead of it in its state court cases.

“It certainly wasn’t true in June that they settled $11 billion worth of cases, and that’s why we put our heads down and continued to litigate,” he said in an interview Wednesday.

The case is In re Roundup Products Liability Litigation, 16-md-02741, U.S. District Court, Northern District of California (San Francisco).

©2020 Bloomberg L.P.

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