Bayer AG has agreed to pay between $10.1 and $10.9 billion to settle thousands of U.S. lawsuits claiming that its widely-used herbicide Roundup caused cancer after more than a year of talks.
The German drugs and pesticides maker also resolved dicamba drift litigation with payment of up to $400 million and most and polychlorinated biphenyl (PCB) water litigation exposure for payment of approximately $820 million.
Bayer has come to terms with about 75% of the 125,000 Roundup suits filed and unfiled claims overall, it said in a statement on Wednesday of the deal to end legal disputes it inherited with its $63 billion takeover of Monsanto in 2018.
The settled cases over Roundup and other glyphosate-based weedkillers account for about 95% of those currently set for trial, it added. The resolution also puts in place a mechanism to resolve potential future claims efficiently.
Weitz & Luxenberg was the first law firm to file suit against Monsanto in the fall of 2015, alleging that exposure to Roundup was causing Non-Hodgkin Lymphoma in tens of thousands of Americans from farmers to landscapers and maintenance workers to homeowners. The firm was also co-lead counsel in the Roundup multi-district products liability litigation in the Northern District of California before the Honorable Vince Chhabria. The settlement comes as Weitz & Luxenberg was preparing for trial dates that had already been set for 33 of those plaintiffs.
“It has been a long journey, but we are very pleased that we’ve achieved justice for the tens of thousands of people who, through no fault of their own, are suffering from Non-Hodgkin Lymphoma after using a product Monsanto assured them was safe,” said Robin Greenwald, Practice Group Chair, Environmental Pollution and Consumer Protection at Weitz & Luxenberg.
The Roundup class agreement will be subject to approval by Judge Vince Chhabria of the U.S. District Court for the Northern District of California. The resolutions were approved unanimously by Bayer’s Board of Management and Supervisory Board with input from its Special Litigation Committee. The agreements contain no admission of liability or wrongdoing.
“First and foremost, the Roundup settlement is the right action at the right time for Bayer to bring a long period of uncertainty to an end,” said Werner Baumann, Chief Executive Officer of Bayer. “It resolves most current claims and puts in place a clear mechanism to manage risks of potential future litigation. It is financially reasonable when viewed against the significant financial risks of continued, multi-year litigation and the related impacts to our reputation and to our business. The decision to resolve the Roundup litigation enables us to focus fully on the critical supply of healthcare and food. It will also return the conversation about the safety and utility of glyphosate-based herbicides to the scientific and regulatory arena and to the full body of science.”
The three cases that have gone to trial – Johnson, Hardeman and Pilliod – will continue through the appeals process and are not covered by the settlement. It is important for the company to continue these cases as the appeals will provide legal guidance going forward, Bayer said.
In an appellate court filing, the U.S. government expressed its specific support for the company’s preemption arguments, asserting that state law warning claims in the Roundup litigation conflict with U.S. federal law, requiring no cancer warning, and must be dismissed. This week, a federal judge in California found that the weight of scientific evidence does not support the state’s Proposition 65 cancer warning requirement for glyphosate-based herbicides — a ruling that reinforces the very arguments the company has made at trial, Bayer said.
Baumann added: “Our company is grounded in the well-being of our customers. As a science-based company committed to improving people’s health, we have great sympathy for anyone who suffers from disease, and we understand their search for answers. At the same time, the extensive body of science indicates that Roundup does not cause cancer, and therefore, is not responsible for the illnesses alleged in this litigation. We stand strongly behind our glyphosate-based herbicides, which are among the most rigorously studied products of their kind, and four decades of science support their safety and that they are not carcinogenic.” In its Interim Registration Review Decision, issued in January, the U.S. Environmental Protection Agency accurately concluded that it “did not identify any human health risks from exposure to glyphosate.”
Customers, including farmers and other professional users who depend on glyphosate-based herbicides for their livelihoods, will see no change in the availability of Roundup products under the Roundup agreements announced today, Bayer noted. Meanwhile, the company said it remains committed to offering customers more choices and announced last year an investment of approximately €5 billion over a 10-year period to develop additional methods to manage weeds as part of an integrated approach to sustainable agriculture.
Bayer also announced a mass tort agreement to settle the previously disclosed dicamba drift litigation involving alleged damage to crops. The company will pay up to a total of $400 million to resolve the multi-district litigation pending in the U.S. District Court for the Eastern District of Missouri and claims for the 2015 to 2020 crop years. Claimants will be required to provide proof of damage to crop yields and evidence that it was due to dicamba in order to collect. The company expects a contribution from its co-defendant, BASF, towards this settlement.
The only dicamba drift case to go to trial – Bader Farms – is not included in this resolution. The company believes the verdict in Bader Farms is “inconsistent with the evidence and the law” and will continue to pursue post-trial motions and an appeal, if necessary.
Bayer said it stands strongly behind the safety and utility of its XtendiMax herbicide with VaporGrip technology and continues to enhance training and education efforts to help ensure growers use these products successfully.
Cash payments related to the settlements are expected to start in 2020. Bayer currently assumes that the potential cash outflow will not exceed $5 billion in 2020 and $5 billion in 2021; the remaining balance would be paid in 2022 or thereafter. In order to finance these payments which are subject to tax treatment, Bayer can make use of existing surplus liquidity, future free cash flows, the proceeds from the Animal Health divestment, and additional bond issuances, which will provide flexibility in managing the settlement payments as well as upcoming debt maturities.
Based on publications by the rating agencies and the company’s communication with them, Bayer expects to keep investment grade credit ratings. With its strong underlying business, the company intends to keep its dividend policy. At the same time, deleveraging the balance sheet remains a high priority.
Positioning for the Future
“As we work to put this major litigation behind us, Bayer can set a course for the future and tackle the global challenges we face in both health and nutrition – not only today as we confront the COVID-19 pandemic, but also long-term, as we work to improve quality of life for a growing and aging population of an estimated 10 billion people by 2050,” said Baumann. “More than 100,000 people put their energies into making our vision of ‘Health for all, Hunger for none’ come true with medicines and agricultural products. We believe that science and innovation will be critical to the future, just as they have been for Bayer in serving customers and patients over nearly 160 years. We are committed to addressing these challenges in a responsible manner, both to help meet the UN’s sustainable development goals, and maintain the transparency and constructive engagement with stakeholders that is essential to sustain public trust in our products and in our company.”