Bayer and attorneys for a proposed class of potential future Roundup plaintiffs will reexamine their options after a federal judge expressed skepticism over the legality and fairness of their proposed settlement.

Attorneys for the proposed class withdrew their motion Wednesday for preliminary approval of the agreement, which could stymie future lawsuits against Bayer over exposure to the weedkiller.

The decision to withdraw the motion comes after a ruling by U.S. District Judge Vince Chhabria on Monday in which he expressed doubts about the legality of the proposed agreement, which would provide $1.1 billion to support research on treatment of Non-Hodgkin lymphoma, NHL diagnoses, and “need-based assistance” for people diagnosed with NHL. The proposal also calls for a five-member science panel to examine the question of whether exposure to Roundup causes NHL.

Attorneys for potential members of the class had filed motions in the court asking Chhabria to delay a hearing this month on the proposed settlement, saying they needed more time to look it over.

They also had raised questions about the settlement itself. As one motion for a putative class member said, the proposed settlement “has never before been attempted in the history of American jurisprudence” and “could have a dramatic effect not only on this litigation but on the future of mass tort litigation.”

In his ruling, the judge said he was “skeptical of the propriety and fairness of the proposed settlement” and said he was “tentatively inclined” to deny the motion for preliminary approval.

On June 24, Bayer and counsel for existing plaintiffs announced a settlement between $8.8 billion and $9.6 billion to address close to 100,000 existing claims that exposure to Roundup caused their NHL. Another $1.25 billion was set aside to address claims by potential future plaintiffs, which includes a maximum of $150 million in attorney fees.

Bayer supported the withdrawal, saying it “will enable the parties to more comprehensively address the questions recently raised” by Chhabria, who is presiding over the federal Roundup litigation.

“Bayer 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,” the company said. “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.”

Attorneys for the proposed class said in a statement that the withdrawal “will enable the parties to work to revise the settlement agreement, addressing the issues and concerns” raised by Chhabria in his July 6 order.

“We remain strongly committed to a fair and just resolution that serves the needs and interests of persons exposed to Roundup who are not otherwise included in the negotiations for the comprehensive resolution of the thousands of individual cases, in support of a settlement for all,” Elizabeth Cabraser, of Lieff Cabraser Heimann & Bernstein in San Francisco, said in a statement.

A controversial part of the proposed settlement of potential future claims involves the establishment of a five-member science panel that would determine “general causation” — whether exposure to Roundup causes NHL. If the panel were to conclude that it doesn’t, then class members would be “barred from claiming otherwise in any future litigation against the company,” Bayer said in announcing the settlement.

But Chhabria said “even with the consent of both sides, 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 dose Roundup is capable of causing cancer) from judges and juries to a panel of scientists.”

He also questioned the role of the science panel. “In an area where the science may be evolving, how could it be appropriate to lock in a decision from a panel of scientists for all future cases?” the judge asked.

For example, he said, “imagine the panel decides in 2023 that Roundup is not capable of causing cancer. Then imagine that a new, reliable study is published in 2028 which strongly undermines the panel’s conclusion. If a Roundup user is diagnosed with NHL in 2030, is it appropriate to tell them that they’re bound by the 2023 decision of the panel because they did not opt out of a settlement in 2020?”

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“Given the diffuse, contingent, and indeterminate nature of the proposed class, it seems unlikely that most class members would have an opportunity to consider in a meaningful way (if at all) whether it is in their best interest to join the class,” Chhabria said.

A class that is “narrow and readily identifiable,” such as NFL players who have yet to develop degenerative brain disease is one thing, Chhabria said.

However, “a class that includes all Roundup users who will get cancer in the future is very different,” he said. “For example, the idea that a migrant farmworker or someone who is employed part time by a small gardening business would receive proper notification (much less the opportunity to consider their options in a meaningful way) is dubious.”

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