• by Thom Forbes  @tforbes, June 25, 2020

Images from a Bayer video attesting to glyphosate's safety.

Bayer AG has agreed to pay up to $10.9 billion to settle nearly 100,000 lawsuits in the U.S. that claim its glyphosate-based Roundup weed killer causes cancer. It did not admit liability or wrongdoing, maintains that independent studies show that the substance is safe to use, and will continue to market the product. 

In making the settlement, Bayer has come to terms with about 75% of the 125,000 filed and unfiled claims against the herbicide overall. The settled cases over Roundup and other glyphosate-based weedkillers account for about 95% of those currently set for trial, Reuters reports.

Bayer, the German firm better known for pharmaceuticals such as its eponymous aspirin, Aleve and Alka-Seltzer, acquired St. Louis-based Monsanto, the original manufacturer of Roundup and the world’s largest supplier of genetically modified seeds, in a $62.5 billion deal that closed in June, 2018 after two years of antitrust reviews. In doing so, it also inherited the legal actions initiated against Monsanto.

“The Roundup settlement is the right action at the right time for Bayer to bring a long period of uncertainty to an end,” Bayer CEO Werner Baumann said in a statement announcing the action yesterday.

“The company is taking a calculated risk that the benchmark settlement will largely resolve its legal problems. Bayer still faces at least 30,000 claims from plaintiffs who have not agreed to join the settlement. [Baumann] said that the two critical conditions for a settlement were that it was financially reasonable and that it would bring closure to the litigation,” Patricia Cohen writes  for The New York Times. 

“‘We are totally convinced’ this does both,’ Baumann said in an interview on Wednesday. There is money put aside for existing claimants outside of the agreement, he said, and a structure to deal with future claimants that could emerge,” Cohen adds.

“In the past two years, California jurors have awarded $2 billion to a couple, $80 million to a man, and $289 million to a former groundskeeper (the three settlements were later reduced) who all blamed their cancer diagnoses on Roundup, which led Bayer shares to plummet. The company said in its Wednesday statement that these three cases won’t be covered by the settlement and will continue through the appeals process. Claimants who choose to participate in the settlement will have to drop their cases or agree not to file,” Hannah Denham writes  for The Washington Post.

“Getting past the legal drama is a top priority for … Baumann, but the milestone settlement left open the potential of more lawsuits. Bayer still faces about 30,000 unresolved cancer claims that could cost billions, and lawyers vowed to keep pressuring the agriculture-chemicals giant,” Bloomberg’s Jef Feeley and Tim Loh write  for Bloomberg Finance.

“‘If Bayer and its investors thought the Roundup litigation was wrapped up in a nice, neat ball with this settlement, they are sadly mistaken,” Tom Kline, a Philadelphia-based plaintiffs’ lawyer who won an $8 billion verdict against Johnson & Johnson last year over one of its anti-psychotic drugs, tells them. “We are working hard getting these cases in and ready for trial.”

There’s also the risk of new cases.

“That Bayer’s Roundup products will continue to be sold, without a cancer warning label, leaves the company exposed to future lawsuits. It creates a unique legal conundrum for the company over how best to guard itself against potential future litigation,” write  Ruth Bender, Laura Kusisto and Sara Randazzo for The Wall Street Journal.

“To attempt to resolve the key question of whether glyphosate is a carcinogen, Bayer is seeking court permission to create a class of future plaintiffs and fund a five-member scientific panel that will spend several years evaluating the link between Roundup and cancer,” they continue.

“The panel will report its findings to U.S. District Judge Vince Chhabria in San Francisco. A conclusion that the product doesn’t cause cancer will essentially shut down any future cases. If the panel does find a link between Roundup and cancer, Bayer would have to fight plaintiff-by-plaintiff to prove the individuals’ cancer wasn’t caused by the product,” they point out.

“Non-Hodgkin lymphoma patients started suing Monsanto by the hundreds after a 2015 World Health Organization report  suggested glyphosate, the key ingredient in Roundup, might cause cancer. The report, by WHO's International Agency for Research on Cancer, said glyphosate is “probably carcinogenic to humans,” Holly Yan writes  for CNN Health.

“But Monsanto has long maintained that Roundup does not cause cancer and said the IARC report is greatly outnumbered by studies saying glyphosate is safe,” Yan adds.

“American depositary receipts of Bayer rose 1.47% to $20.69” on the news yesterday, Rob Lenihan reports  for The Street.