(Reuters) - A mere two weeks ago, I told you about a revolutionary class action proposal by Roundup maker Bayer and a team of plaintiffs’ lawyers that offered a whole new way for companies to think about resolving their long-term exposure to mass tort liability.
Now it looks like the revolution may have been squelched in its infancy. In a truly stunning order issued Monday night, U.S. District Judge Vince Chhabria of San Francisco, who is overseeing consolidated litigation alleging that Roundup is carcinogenic, said he is “skeptical of the propriety and fairness of the proposed settlement.” Judge Chhabria said he is “tentatively inclined” to deny a motion for preliminary approval of the deal.
The judge seems deeply worried about precisely the innovations that made the proposed settlement so intriguing – and controversial. The class action, you’ll recall, was designed to address future claims by people who have been exposed to the weedkiller but who, as of the date of the proposed settlement, had not yet hired a lawyer to pursue a personal injury suit. The settlement called for the establishment of a panel of scientific experts to weigh the data and reach a determination about whether and at what exposure levels Roundup may cause non-Hodgkin’s lymphoma. (Bayer has denied claims that Roundup or glyphosate causes cancer. It says decades of independent studies have shown that Roundup is safe for human use and that regulators around the world have approved the product.)
The proposed settlement did not purport to resolve individual claims by future plaintiffs, who would be free to bring personal injury suits after the scientific panel reached its causation determination. But the panel’s findings would be binding on all class members. So if the scientists sided with Bayer, future plaintiffs would realistically have no chance of winning their cases.
In Monday’s order, which technically addressed requests by prospective objectors for more time to brief their concerns, Judge Chhabria said it may not even be constitutional or otherwise legal to hand over the responsibility of determining general causation to a scientific panel in lieu of a jury. And even if it is lawful to delegate the causation question to scientific experts, Judge Chhabria said, it’s hard to see how future plaintiffs – members of the proposed class – would benefit from that arrangement.
“Thus far, judges have been allowing these cases to go to juries, and juries have been reaching verdicts in favor of the plaintiffs, awarding significant compensatory and punitive damages,” the judge said. “Why would a potential class member want to replace a jury trial and the right to seek punitive damages with the process contemplated by the settlement agreement?”
Judge Chhabria also raised questions about how the science panel’s findings can be the last word when science is ever-evolving. And, most fundamentally, he said he is not convinced that everyone who might someday have a Roundup suit against Bayer can receive fair notice that their rights are at stake in this class action. It’s “dubious,” he said, that a migrant farmworker or part-time gardening employee, for instance, will have a meaningful opportunity to weigh her options and decide whether to give up the right to a jury.
The judge said that given his “current skepticism,” it wouldn’t be worth anyone’s time and effort to extend the deadlines for briefing on the motion for preliminary approval, which is scheduled for a hearing on July 24. He said he would entertain two-page letter briefs from potential objectors and would call for more fulsome briefing if his views of the deal evolve.
In the meantime, he seemed to urge Bayer and prospective class counsel from Lieff Cabraser Heimann & Bernstein, Audet & Partners and the Dugan Law Firm to start thinking hard about what he called “Plan B.” (Judge Chhabria said he’s not aware that any such alternative plan is in the works, but “it would be surprising if none existed given the stakes involved and the novelty of Plan A.”)
Bayer, whose stock price took a beating when the judge’s order hit the news, said in a statement, “We appreciate the judge’s order raising his preliminary concerns with the proposed class settlement, which we take seriously and will address at the preliminary approval hearing on July 24.” Law professor Samuel Issacharoff of New York University, who is advising class counsel on the proposed settlement, declined to comment. In class counsel’s response to initial concerns by prospective objectors, plaintiffs’ lawyers backing the settlement emphasized that any class member can opt out of the deal and those who remain in the class do not give up the right to bring an eventual personal injury claim against Bayer.
I told you in my first column on the proposed Roundup futures class that law professors with a deep knowledge of class actions and multidistrict litigation, including Brian Wolfman of Georgetown and Elizabeth Burch of the University of Georgia, were concerned about forcing future plaintiffs – and especially those who might not even pay attention to class action notices - to give up the right to a jury and binding them to the determination of a panel of experts.
Plaintiffs’ lawyers opposed to the proposed settlement brought in some eminent lawyers of their own to register their initial concerns. Baron & Budd teamed up with Vanderbilt law professor Brian Fitzpatrick. Napoli Shkolnik retained Thomas Goldstein of Goldstein & Russell. Both of their requests for additional time emphasized the dramatic significance of the novel device proposed by Bayer and class counsel to resolve future mass tort litigation.
Based on Judge Chhabria’s order, it turns out he was already well aware of those implications. And it looks like he’s going to have some tough questions of his own at the preliminary approval hearing later this month. Said Fitzpatrick in an email: “Everyone is going to have to do their homework before July 24.”