The proposed Roundup settlement raises significant questions about class-action litigation. At the outset, notwithstanding the enormous settlement numbers being tossed around, one wonders about the merits of the litigation.
Plaintiffs allege that glyphosate—a widely used herbicide—is carcinogenic. Though it looks like Bayer will end up paying nearly $11 billion dollars to settle various class action lawsuits, glyphosate will remain on the market as approved by the Environmental Protection Agency (“EPA”). Something is rotten in the State of Denmark. Either glyphosate is dangerous and should be taken off the market or the Roundup Settlement is a plaintiffs’ bar shakedown.
Glyphosate has been registered as a pesticide in the United States since 1974. The EPA re-evaluates every registered pesticide at least once every 15 years, and glyphosate has undergone numerous reviews. In response to public comments and concerns over the herbicide relating to the Round-Up litigation, the EPA released a new interim registration review. As part of the review, “EPA continue[d] to find that there are no risks of concern to human health when glyphosate is used in accordance with its current label.” Further, EPA “also found that glyphosate is unlikely to be a human carcinogen.” The EPA’s findings explain why Roundup will remain on the market but raise questions about the fairness of a tort system resulting in an $11 billion dollar settlement over a product that the EPA considers to be safe.
And then there’s the money. Lead plaintiffs’ attorneys are requesting a cool $800 million in common benefit funds. That amount seems exorbitant, but doesn’t even represent all of the cash the plaintiffs’ bar will rake in. Rather, the so-called common benefit fee comes off the top of any settlement amount, reducing the amount available to actual plaintiffs. And plaintiffs’ attorneys will also be entitled to nearly half (usually 40%) of every claimants’ award. An objector to the settlement argued, for example, that one of the lead plaintiffs’ firms had reportedly settled 5,000 cases for $849 million. Given a “standard” contingency fee of 40%, the Miller firm was already paid $340 million out of its clients’ recovery. In contrast, only in “extraordinary circumstances” would an actual plaintiff receive an award of as much as $200,000. The Roundup litigation looks like the gift that keeps giving—to the lawyers.