This case arises from multidistrict mass-tort litigation against Monsanto for claims related to injuries caused by the herbicide Roundup. Monsanto and a group lawyers representing a few plaintiffs proposed a class-action settlement that would settle the claims of anyone exposed to Roundup who is not already in litigation against Monsanto. The proposed settlement would bind both (a) people exposed to Roundup who have been diagnosed with Non-Hodgkin’s Lymphoma, or (b) people exposed to Roundup who have not been diagnosed with Non-Hodgkin’s Lymphoma, as well as any claims of their family members.
Public Citizen filed an amicus curiae memorandum opposing the parties’ motion for preliminary approval of the proposed settlement, appointment of class counsel, and direction that notice be sent. The memorandum explains that, among other problems, the proposed settlement is unfair to the subclass of individuals who have been exposed to Roundup, have not been diagnosed with Non-Hodgkin’s Lymphoma, but may develop the disease in the future, as well as their derivative claimants. It is impossible to provide such “futures” with adequate notice of their ability to opt out of the settlement class. Even if they received notice, it is unlikely that the “futures” would have the ability to make an informed choice now regarding the valuable rights they will forfeit if they do not opt out. Although the agreement provides an opportunity for class members to decline to seek a compensation award from the settlement fund and, eventually, to pursue an individual claim for compensatory damages, those who do so remain bound to four aspects of the agreement that will strip them of valuable rights and make it harder for them to retain counsel to vindicate their rights on an individual basis. The memorandum also explains that the proposed settlement fails the adequacy-of-representation requirement of Rule 23(a) and the superiority requirement of Rule 23(b)(3), particularly as to the “futures” and their derivatives.
Our memorandum also explained that the broad releases would bind class members who accept claims to a gag clause, barring them from “speaking ill” of defendants or their products, broadly defined. In response to our filing, the parties deleted the gag clause from the proposed release.
In addition, we explained that the proposed “accelerated payment awards” pose risks to subclass 1 members. The proposed settlement provides that Monsanto will use the court-approved class notice program to offer $5,000 awards to people who already suffer from Non-Hodgkin’s Lymphoma after Roundup exposure—before the Court even considers whether to grant final approval on the basis that the settlement is fair, reasonable, and adequate, as required by Federal Rule of Civil Procedure 23(e). The low amount does not appear to satisfy Rule 23(e), and the parties’ intention to implement the “accelerated payment awards” provisions of the proposed agreement prior to receiving Court approval violates Rule 23.