Bayer probably regrets ever buying Monsanto, the manufacturer of Roundup products. It has already agreed to pay $10.9 billion to settle almost 100,000 lawsuits by people who say Roundup gave them cancer. It may have to pay more to Roundup users who develop cancer in the future. It paid $20 million in punitive damages alone to a single person who developed non-Hodgkin lymphoma after using Roundup for years.
Bayer has decided to end retail sales of Roundup by the end of this year. It says it is doing so to prevent further litigation. It claims to still stand behind the safety of Roundup’s main ingredient, glyphosate.
Now, Bayer has approval from a judge to settle a nationwide consumer class action. The class claimed that Monsanto failed to put a cancer warning label on its Roundup products in violation of California law, which misled consumers into paying more for Roundup than they would have otherwise.
The settlement requires Bayer to compensate California consumers who bought Roundup at the retail level for that overpayment. Eight lead plaintiffs will each receive $5,000 in damages plus $210,888 in expenses related to the litigation. Over 200,000 people have been identified as the class, and they can still submit claims.
Consumers without receipts can submit claims for up to 20% of the average retail price of the product they bought. Consumers with receipts can claim unlimited bottles. The average payout per bottle will be between $0.50 and $33.00, depending on the size of the bottle.
According to Courthouse News Service, consumers have submitted between 226,268 and 230,097 net valid claims so far. Those claims alone will cost Bayer between $12 and $14 million. The total settlement could cost Bayer between $23 and $45 million.
A couple of sticking points
When this settlement was first proposed, the federal judge in charge of Roundup litigation, U.S. District Judge Vince Chhabria, was not inclined to approve it. The reason was the potential confusion it could create among consumers who used Roundup and have developed cancer or fear they might.
Chhabria feared that some might think that participating in this consumer class action settlement would bar their cancer claims. It does not. You can still bring a claim against Bayer/Monsanto if you believe Roundup gave you cancer, regardless whether you participate in the consumer class action.
At the time, the judge said that if 0.1% of the class was confused about this issue, the settlement should be rejected. He told the lawyers that their class action notice should “scream from the mountaintops” that people participating in the settlement do not give up their right to sue for cancer.
In his recent order approving the settlement, Chhabria noted that the class is expected to receive over two-thirds of what the plaintiffs’ attorneys estimated they would receive if the case were brought to verdict. He called this “fair and reasonable.”
The U.S. Supreme Court could still upend this settlement, however. It has requested the solicitor general’s input on whether it is lawful to hold Monsanto liable for the missing cancer label.
California law requires the label, but federal law forbids companies from putting warning labels on their products without EPA approval – and the EPA never approved cancer warnings for glyphosate. Under the “federal preemption” doctrine, when state and federal laws conflict, federal law generally prevails.