Case 3:16-md-02741-VC Document 11182 Filed 07/06/20 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE: ROUNDUP PRODUCTS
`LIABILITY LITIGATION
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`This document relates to:
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`Ramirez, et al. v. Monsanto Co., Case No.
`3:19- cv-02224
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`MDL No. 2741
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`Case No. 16-md-02741-VC
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`PRETRIAL ORDER NO. 214:
`DENYING MOTIONS TO ALTER
`SCHEDULE ON MOTION FOR
`PRELIMINARY APPROVAL
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`In addition to resolving tens of thousands of pending Roundup cases, Monsanto has
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`reached a settlement in a newly-filed class action. This new lawsuit, and the accompanying
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`settlement, is designed to resolve all future claims—either by Roundup users who have
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`developed cancer but have not yet sued, or by Roundup users who have not yet developed cancer
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`at all. In contrast to Monsanto’s settlement of the pending cases against it, settlement of this new
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`“futures” class action requires court approval.
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`The Court has set a hearing for July 24, 2020 on whether to grant preliminary approval of
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`the settlement. The deadline for potential class members to oppose the motion for preliminary
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`approval, or to file objections to any aspect of the settlement, is July 13. Since setting these
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`dates, the Court has received many requests to push them back. These requests come from
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`potential class members who oppose the settlement. The opponents contend that because the
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`settlement it is complex, novel, and problematic in many respects, they need more time to
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`analyze it and file comprehensive opposition briefs. For similar reasons, they contend the Court
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`should take more time to consider the settlement before holding a hearing on preliminary
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`approval. As they correctly note, careful scrutiny must be given to class action settlements at the
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`Case 3:16-md-02741-VC Document 11182 Filed 07/06/20 Page 2 of 4
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`preliminary approval stage. To the extent the plaintiffs and Monsanto suggest that it would be no
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`big deal to wait until the final approval stage before fully considering objections to this
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`settlement agreement, they are wrong. As explained in Cotter v. Lyft:
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`[T]he idea that district courts should conduct a more lax inquiry at
`the preliminary approval stage seems wrong. Certainly nothing in
`the text of Rule 23 suggests courts should be more forgiving of flaws
`in a settlement agreement at the preliminary stage than at the final
`stage, or that courts should merely give settlement agreements a
`“quick look” at the outset. And lax review makes little practical
`sense, from anyone's standpoint. If the district court, by taking a
`quick look rather than a careful one, misses a serious flaw in the
`settlement, the parties and the court will waste a great deal of money
`and time notifying class members of the agreement, only to see it
`rejected in the end, requiring the parties to start over. The same is
`true if the district court does identify a potentially serious flaw at the
`preliminary stage but waits until final approval to conclude that it's
`fatal. What's worse, if a court waits until the final approval stage to
`thoroughly assess the fairness of the agreement, momentum could
`have a way of slanting the inquiry, in a manner that deprives the
`class members of the court protection that Rule 23 demands.
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`This approach may also inadvertently disadvantage class members.
`Class members will receive a notice saying that the settlement has
`received preliminary approval from a federal judge. A layperson
`may take the court's preliminary approval to imply that she shouldn't
`really worry about whether the settlement is in her best interest,
`because surely the court, which is more familiar with the law and
`the facts of the case, has already taken care of that. But that is a
`misimpression if the judge has merely glanced at the settlement or
`decided to hold off adjudicating a potential problem until final
`approval.
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`This is not to suggest that rigorous inquiry at the initial stage should
`convert final review to a mere formality. Sometimes objectors may
`bring a flaw to the court's attention at the final stage—one the court
`didn't catch at the initial stage. Other times, further factual
`development between the initial and final stages may cause the court
`to conclude that the agreement is unfair after all. But by scrutinizing
`the agreement carefully at the initial stage and identifying any flaws
`that can be identified, the court allows the parties to decide how to
`respond to those flaws (whether by fixing them or opting not to
`settle) before they waste a great deal of time and money in the notice
`and opt-out process.
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`193 F. Supp. 3d 1030, 1036-37 (N.D. Cal. 2016).
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`The points made in Cotter seem especially applicable to complex, expensive-to-
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`administer settlements like the one proposed here. The Court thus appreciates the widespread
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`Case 3:16-md-02741-VC Document 11182 Filed 07/06/20 Page 3 of 4
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`interest in the settlement agreement, and agrees that it should not grant preliminary approval
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`before fully considering the views of any potential class members who oppose it. However, even
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`before receiving opposition briefs, the Court is skeptical of the propriety and fairness of the
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`proposed settlement, and is tentatively inclined to deny the motion. The following are just some
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`of the Court’s concerns:
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`• 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.
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`• Even if it were lawful to delegate this function to the panel, it’s unclear how the
`delegation proposed here would benefit a class of Roundup users who either have cancer
`but have not yet sued Monsanto or have not yet developed cancer. Thus far, judges have
`been allowing these cases to go to juries, and juries have been reaching verdicts in favor
`of the plaintiffs, awarding significant compensatory and punitive damages. Why would a
`potential class member want to replace a jury trial and the right to seek punitive damages
`with the process contemplated by the settlement agreement?
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`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? For examine, 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. There’s nothing wrong
`with certifying a class of people who are candidates to suffer harm in the future when the
`class is narrow and readily identifiable—for example, NFL players who have not yet
`developed CTE. In a case like that, it’s relatively easy to ensure that the class members
`are notified and given meaningful chance to consider their options before deciding
`whether to opt out of the settlement. A class that includes all Roundup users who will get
`cancer in the future is very different. 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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`Case 3:16-md-02741-VC Document 11182 Filed 07/06/20 Page 4 of 4
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`Given the Court’s current skepticism, it could be contrary to everyone’s interest to delay
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`the hearing on preliminary approval. If the motion for preliminary approval is denied, the parties
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`will presumably move to Plan B for devising a system to address future claims. (Although the
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`Court is not aware of any Plan B, it would be surprising if none existed given the stakes involved
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`and the novelty of Plan A.) And if the parties are going to need to move to Plan B, they would
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`presumably prefer to do that sooner rather than later. Moreover, if the motion would already be
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`denied on the current record, it would be a waste of time and money to wait for hundreds of
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`pages of briefing from dozens of lawyers and law professors from around the country, no matter
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`how interesting those briefs would be.
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`Accordingly, the following procedure will apply to the motion for preliminary approval.
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`The hearing will take place, as scheduled, on July 24. With respect to the filing deadline on July
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`13, the Court will only consider filings from potential class members titled “preliminary
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`opposition” or “preliminary objections.” Any such filing must be in the form of a letter brief, not
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`to exceed two pages, single-spaced. (Counsel can be listed on a third page to avoid taking up
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`space on the first two pages.) Anything longer will not be considered and will be stricken from
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`the docket. If the Court’s views begin to evolve after the hearing on preliminary approval, it will
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`issue an order inviting full briefing. Filing a letter brief will not be a prerequisite to filing a
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`longer brief if one is invited after the hearing, nor will the longer brief be limited to the issues
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`raised in the letter brief. The plaintiffs may file a reply to the letter briefs by the previously
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`specified deadline.
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`The Court will not consider amicus briefs at this time. If the Court orders full briefing
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`from potential class members, it will permit amicus filings then.
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`IT IS SO ORDERED.
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`Dated: July 6, 2020
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`______________________________________
`VINCE CHHABRIA
`United States District Judge
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