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Bayer supports move to withdraw class agreement

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CHANGING COURSE? Questions by key judge in class action cases for Roundup stall move for settlement.
Company reports that it is committed to a Roundup settlement, but judge's questions stall deal

Bayer issued a statement today after news that Federal District Court Judge Vince Chhabria raised questions about the $10.9 billion settlement deal worked out and announced recently. Chhabria serves the Northern District of California and is presiding over the federal litigation and has called he plan problematic.

According to coverage of the judge's comments, he questioned the settlement, which includes a novel approach to deal with future cases, and was "tentatively inclined" to reject it.

Wednesday, July 8, Bayer published this statement noting it is "in agreement with counsel representing the proposed Roundup settlement class on their decision to withdraw the pending motion for preliminary approval of all parties' issue class agreement. The withdrawal will enable the parties to more comprehensively address the questions raised" by Chhabria.

In the statement Bayer also said it "remains strongly committed to a resolution that simultaneously addresses both the current litigation on reasonable terms and a viable solution to manage and resolve potential future litigation. Mass tort settlement agreements like this are complex and may require some adjustments along the way, but the company continues to believe that a settlement on appropriate terms is in the best interest of Bayer and all of its stakeholders."

While the main settlement is for nearly 125,000 claimants is not affected, the portion for future claims is the target. The proposed settlement included a unique approach to future cases that would have taken those cases out of court.

Plaintiff's attorneys for those with cases not included in the settlement – which some estimate to be more than 30,000 – had expressed the most ire over the proposed settlement. The original proposal included a Class Science Panel that would be engaged to review all relevant science regarding Roundup and any cancer threat, which Bayer has long held doesn't exist.

The panel would review the science over four years and once their conclusions were reached if no link was found, there could be now more lawsuits against Roundup, if the settlement was approved. And if a link was found, plaintiffs would have to prove they had been exposed at the levels determined to cause the cancer – non-Hodgkins Lymphoma – by the panel.

This is the area the judge was questioning, including his concern that this would eliminate courts and juries from determination in those future cases. In the Bloomberg report, Chhabria notes that "it's questionable whether it would be constitutional (or otherwise lawful) to delegate the function of deciding the general causation question (that is, whether and at what does Roundup is capable of causing cancer) from judges and juries to a panel of scientists."

Stepping back from this portion of the settlement does not affect two other settlements announced at the same time as the originally proposed glyphosate agreement - the one concerning dicamba, and PCBs. Those two agreements remain on track, according to Bayer.

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