June 24, 2020
Bayer announced today a series of agreements that will substantially resolve major outstanding Monsanto litigation, including U.S. Roundup product liability litigation, dicamba drift litigation and PCB water litigation. The main feature is the U.S. Roundup resolution that will bring closure to approximately 75% of the current Roundup litigation involving approximately 125,000 filed and unfiled claims overall. The resolved claims include all plaintiff law firms leading the Roundup federal multi-district litigation (MDL) or the California bellwether cases, and those representing approximately 95% of the cases currently set for trial, and establish key values and parameters to guide the resolution of the remainder of the claims as negotiations advance. The resolution also puts in place a mechanism to resolve potential future claims efficiently. The company will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup litigation, including an allowance expected to cover unresolved claims, and $1.25 billion to support a separate class agreement to address potential future litigation. 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 Roundup agreements are designed as a constructive and reasonable resolution to a unique litigation,” said Kenneth R. Feinberg, court-appointed mediator for the settlement talks. “The separate, independent settlements of the current claims are unique and a tribute to Bayer. The significant progress made to date – which exceeds the initial participation rates of other claims resolution proceedings – provides a robust framework that will enable the parties to bring closure to the current Roundup™ litigation in due course.”
Resolution of Roundup litigation
The multi-step Roundup™ resolution includes several elements. The agreements will resolve the vast majority of the current litigation in U.S. federal and state courts, including both plaintiffs with filed cases and parties who have retained counsel but not yet filed their claims in court. Those participating in the settlement will be required to dismiss their cases or agree not to file. The range of $8.8 billion to $9.6 billion covers both the agreements already signed and those that are still under negotiation. It also reflects the fact that the number of claimants who are eligible to receive compensation under these agreements won’t be known until the claims process is well underway. The claims still subject to negotiation largely consist of cases generated by TV advertising and for which plaintiffs’ law firms have provided little or no information on the medical condition of their clients, and/or cases held by law firms with small inventories.
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. 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. Just 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.
Potential future cases will be governed by a class agreement which is subject to court approval. The agreement includes the establishment of a class of potential future plaintiffs and the creation of an independent Class Science Panel. The Class Science Panel will determine whether Roundup can cause non-Hodgkin’s lymphoma (NHL), and if so, at what minimum exposure levels. The materials considered by the Class Science Panel that Bayer has permission to disclose or are in the public domain will be posted on a public website. Both the class and company will be bound by the Class Science Panel’s determination on this question of general causation, taking this decision out of the jury trial setting and putting it back in the hands of expert scientists. If the Class Science Panel determines that a causal connection between Roundup and NHL is not established, class members will be barred from claiming otherwise in any future litigation against the company. The Class Science Panel’s determination is expected to take several years. Class members will not be permitted to proceed with Roundup claims prior to the Class Science Panel’s determination, and cannot seek punitive damages. The agreed funding is capped at $1.25 billion and will support research into treatment of NHL, NHL diagnostic programs in underserved areas, and assistance payments to class members who develop NHL before the Class Science Panel’s determination and are eligible on a need basis for assistance during that period.
The company said that before deciding to settle, it considered the alternative course of continuing to litigate Roundup cases. In the company’s risk assessment, potential negative outcomes of further litigation, including more advertising and growing numbers of plaintiffs, upwards of 20 trials per year and uncertain jury outcomes, and associated reputational and business impacts, likely would substantially exceed the settlement and related costs.
“Taking account of various options, I am convinced this plan provides a comprehensive, reasonable solution to the complex, contested issues presented by this litigation,” said attorney John Beisner, a consultant to Bayer’s Supervisory Board and a mass tort expert who leads Skadden, Arps, Slate, Meagher & Flom LLP’s Mass Torts, Insurance and Consumer Litigation Practice Group.
“Supported by our external advisor John Beisner and the Litigation Committee, the Supervisory Board has closely followed the Roundup litigation, as well as the dicamba and PCB litigation, and has provided counsel to the Board of Management on these matters. The Supervisory Board unanimously agrees with our Board of Management that all three settlements are in the best interest of the company and our stakeholders,” said Norbert Winkeljohann, Chairman of Bayer’s Supervisory Board.
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.” Indeed, in its Interim Registration Review Decision, issued in January, the U.S. Environmental Protection Agency (EPA) 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. Meanwhile, Bayer remains committed to offering customers more choices and announced last year an investment of approximately €5 billion over a ten-year period to develop additional methods to manage weeds as part of an integrated approach to sustainable agriculture.
Resolution of dicamba litigation
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 2015-2020 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 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. The company is settling the pending dicamba drift cases to be able to focus on the needs of its customers.
Resolution of PCB litigation
Bayer also announced a series of agreements that resolve cases representing most of the company’s exposure to PCB water litigation. Monsanto legally manufactured PCBs until ceasing their production in 1977. One agreement establishes a class that includes all local governments with EPA permits involving water discharges impaired by PCBs. Bayer will pay a total of approximately $650 million to the class, which will be subject to court approval.
At the same time, the company has entered into separate agreements with the Attorneys-General of New Mexico, Washington, and the District of Columbia to resolve similar PCB claims. For these agreements, which are separate from the class, Bayer will make payments that together total approximately $170 million.
Funding sourced from free cash flow and Animal Health divestment
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.
Bayer: Well positioned 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.”
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