`
`
`
`WACHTELL, LIPTON, ROSEN & KATZ
`John F. Lynch (pro hac vice)
`51 West 52nd Street
`New York, NY 10019
`Telephone: (212) 403-1000
`Facsimile: (212) 403-2000
`JFLynch@wlrk.com
`
`Attorneys for Defendants Bayer Aktiengesellschaft,
`Werner Baumann, Werner Wenning, Liam
`Condon, Johannes Dietsch, and Wolfgang Nickl
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE: ROUNDUP PRODUCTS LIABILITY
`LITIGATION
`
`
`THIS DOCUMENT RELATES TO:
`
`City of Grand Rapids General Retirement System
`et al. v. Bayer Aktiengesellschaft et al., Case No.
`20-cv-04737-RS
`
`The subject of this motion for related-case treatment is a putative class action alleging
`
` MDL No. 2741
`
`Case No. 3:16-md-02741-VC
`
`BAYER DEFENDANTS’ RESPONSE
`TO ADMINISTRATIVE MOTION TO
`CONSIDER WHETHER CASES
`SHOULD BE RELATED
`
`
`
`securities fraud by Bayer Aktiengesellschaft (“Bayer”) and certain of its current and former
`
`directors and officers (together, the “Bayer Defendants”). The shareholder plaintiffs in that
`
`securities case request that it be treated as related to the roughly 3,350 personal-injury cases
`
`pending against Monsanto Company in this multidistrict proceeding (the “MDL”).
`
`The MDL Co-Lead Plaintiff’s Counsel have observed in response to the motion that the
`
`facts of the securities case “do not fit squarely” within the definition of related cases under Civil
`
`Local Rule 3-12(a). Dkt. No. 11289, at 2. We agree with Co-Lead Counsel’s assessment. The
`
`rule provides that actions are related when: (1) they “concern substantially the same parties,
`
`property, transaction or event”; and (2) it “appears likely that there will be an unduly
`
`burdensome duplication of labor and expense or conflicting results if the cases are conducted
`BAYER DEFENDANTS’ RESPONSE TO ADMINISTRATIVE MOTION
`TO CONSIDER WHETHER CASES SHOULD BE RELATED
`MDL No. 2741, CASE NO. 3:16-MD-02741-VC
`
`
`-1-
`
`
`
`
`
`Case 3:16-md-02741-VC Document 11424 Filed 07/27/20 Page 2 of 6
`
`before different Judges.” Civil L.R. 3-12(a). Neither prong of the definition applies to the
`
`securities case.
`
`First, there is no meaningful overlap between the parties, property, transactions, or events
`
`in the securities and personal-injury cases. Monsanto, not Bayer, is the principal defendant in the
`
`personal-injury cases. Bayer and its officers and directors, not Monsanto, are the defendants in
`
`the new securities case. The transactions and events at issue in the MDL surround use of
`
`Roundup and questions of medical causation of alleged personal injuries, just as the MDL Panel
`
`intended. Dkt. No. 1, at 2 (“[A]ll the actions entail an overarching query — whether glyphosate
`
`causes non-Hodgkin’s lymphoma in persons exposed to it while using Roundup.”). The
`
`securities case is not about medical causation, but rather investor transactions in Bayer securities
`
`and public statements by Bayer concerning its acquisition of Monsanto. City of Grand Rapids
`
`General Retirement System v. Bayer Aktiengesellschaft, Dkt. No. 1, at 13, Case No. 3:20-cv-
`
`04737-RS (N.D. Cal. July 15, 2020) (alleging that Bayer’s statements about the merger were
`
`materially misleading for failing to disclose risk of Roundup litigation).
`
`Notwithstanding the obvious difference between the securities and personal-injury cases,
`
`the securities plaintiffs claim that “the actions will involve substantially similar witnesses and
`
`will involve overlapping discovery,” Dkt. No. 11257, at 3; but they never identify any such
`
`witnesses nor specify any area where discovery will overlap. They assert in the same conclusory
`
`way that treating the securities and personal-injury cases as related will “serve the interests of
`
`judicial economy,” id., but they never explain how. Neither assertion appears to have any
`
`credible basis, whether identified by the securities plaintiffs or not. Indeed, the MDL Co-Lead
`
`Counsel have noted that the MDL Executive Committee “did not take discovery of Bayer” or
`
`explore questions relevant to the newly filed securities claims — including Bayer’s “knowledge
`
`
`
`BAYER DEFENDANTS’ RESPONSE TO ADMINISTRATIVE MOTION
`TO CONSIDER WHETHER CASES SHOULD BE RELATED
`MDL No. 2741, CASE NO. 3:16-MD-02741-VC
`
`
`-2-
`
`
`
`Case 3:16-md-02741-VC Document 11424 Filed 07/27/20 Page 3 of 6
`
`of the litigation risks posed by the Roundup litigation and/or its due diligence about the
`
`carcinogenicity of glyphosate and Roundup” — because those issues are “not relevant to the
`
`personal injury cases.” Dkt. No. 11289, at 2.
`
`Second, because the securities and personal-injury cases are so fundamentally different
`
`and the respective proceedings at such different stages, there is no reason to expect any
`
`duplication of labor or expense if the cases are conducted before different Judges, nor any risk of
`
`inconsistent rulings. The MDL cases are well beyond motions to dismiss, currently stayed in
`
`favor of ongoing settlement efforts, with trial preparations ordered to resume in November for
`
`any cases not settled by then. Dkt. No. 11293. In stark contrast, the securities case was just filed
`
`on July 15, 2020; lead-plaintiff motion practice mandated by the Private Securities Litigation
`
`Reform Act will likely consume the next several weeks; and briefing on motions to dismiss will
`
`follow from there with a statutory stay of discovery in place in the meantime. City of Grand
`
`Rapids, Dkt. No. 1; 15 U.S.C. § 78u-4(a)(3)(A)(i), (B)(i), (b)(3)(B).
`
`Accordingly, the securities plaintiffs’ warnings about “unduly burdensome duplication of
`
`labor and expenses” ring hollow. Dkt. No. 11257, at 3. Movants do not offer a single example
`
`of what burdens or duplications might befall the parties or the Court if the cases remain
`
`unrelated. And they do not muster even a conclusory suggestion how conflicting rulings could
`
`ever occur in cases against different defendants that seek different relief under different legal
`
`theories based on different facts. In short, they have not shown that these cases are related under
`
`Civil Local Rule 3-12(a). See Hodges v. Akeena Solar, Inc., Case No. 5:09-cv-02147-JW, 2010
`
`WL 2756536, at *1 (N.D. Cal. July 9, 2010) (cases involving different claims, defendants, and
`
`procedural postures not related even though they involved “substantially the same transaction
`
`and events”).
`
`
`
`BAYER DEFENDANTS’ RESPONSE TO ADMINISTRATIVE MOTION
`TO CONSIDER WHETHER CASES SHOULD BE RELATED
`MDL No. 2741, CASE NO. 3:16-MD-02741-VC
`
`
`-3-
`
`
`
`Case 3:16-md-02741-VC Document 11424 Filed 07/27/20 Page 4 of 6
`
`Unable to meet the definition of related cases under this Court’s rules, the securities
`
`plaintiffs invoke decisions of the Judicial Panel on Multidistrict Litigation to support their
`
`request for related treatment. Dkt. No. 11257, at 3-4. Those decisions do not alter the analysis
`
`here. For one thing, they apply the standard for multidistrict transfer under 28 U.S.C. § 1407(a)
`
`rather than the related-case definition of Civil Local Rule 3-12(a), which governs here. But even
`
`if the MDL standard were relevant, the securities plaintiffs have not shown that their case shares
`
`“one or more common questions of fact” with the personal-injury cases, or that transfer from one
`
`Judge to another within this District would serve the “convenience of parties and witnesses” or
`
`“promote the just and efficient conduct of such actions” in any way. 28 U.S.C. § 1407(a). And
`
`while the movants’ MDL decisions show that cases asserting different legal claims can be
`
`suitable for MDL treatment when they satisfy the standards of § 1407(a), the MDL Panel has
`
`been equally clear — including in this very case — in refuting the securities plaintiffs’
`
`contention that a common factual backdrop is enough to warrant coordination of cases where, as
`
`here, coordination will not promote the efficient conduct of the multiple actions at issue.1
`
`
`1 None of the cited MDL cases permits what the securities plaintiffs seek here — i.e.,
`coordinated treatment of securities cases that do not share common fact questions with cases
`based on other legal theories — as all involved fact issues that were common across the multiple
`causes of action at issue. In re CenturyLink Residential Customer Billing Disputes Litig., 280 F.
`Supp. 3d 1383, 1384 (J.P.M.L. 2017) (deceptive billing practices); In re Volkswagen “Clean
`Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., 148 F. Supp. 3d 1367, 1368 (J.P.M.L.
`2015) (deceptive “defeat device” in diesel engines); In re Lumber Liquidators Chinese-
`Manufactured Flooring Prod. Mktg., Sales Practices & Prod. Liab. Litig., 109 F. Supp. 3d 1382,
`1383 (J.P.M.L. 2015) (misrepresentations about laminate flooring); In re Standard & Poor’s
`Rating Agency Litig., 949 F. Supp. 2d 1360, 1361 (J.P.M.L. 2013) (misrepresentations relating to
`ratings of securities); In re Bank of New York Mellon Corp. Foreign Exch. Transactions Litig.,
`857 F. Supp. 2d 1371, 1373 & n.6 (J.P.M.L. 2012) (manipulation of foreign exchange
`transactions); In re MF Glob. Holdings Ltd. Inv. Litig., 857 F. Supp. 2d 1378, 1380 (J.P.M.L.
`2012) (shortfall in customer accounts); In re State St. Bank & Tr. Co. Fixed Income Funds Inv.
`Litig., 560 F. Supp. 2d 1388, 1389 (J.P.M.L. 2008) (mismanagement of bond funds); In re
`UnumProvident Corp. Sec., Derivative & “ERISA” Litig., 280 F. Supp. 2d 1377, 1379 (J.P.M.L.
`2003) (claims handling practices).
`
`BAYER DEFENDANTS’ RESPONSE TO ADMINISTRATIVE MOTION
`TO CONSIDER WHETHER CASES SHOULD BE RELATED
`MDL No. 2741, CASE NO. 3:16-MD-02741-VC
`
`
`-4-
`
`
`
`
`
`Case 3:16-md-02741-VC Document 11424 Filed 07/27/20 Page 5 of 6
`
`Thus, in multiple Notices to Counsel, the MDL Panel has repeatedly held that personal-
`
`injury cases alleging that Roundup caused cancers other than non-Hodgkin’s lymphoma were
`
`“not appropriate for inclusion in this MDL.” In re Roundup Prods. Liab. Litig., Dkt. No. 1674,
`
`MDL No. 2741 (J.P.M.L. Mar. 6, 2020) (leiomyosarcoma); In re Roundup Prods. Liab. Litig.,
`
`Dkt. No. 1368, MDL No. 2741 (J.P.M.L. Oct. 24, 2019) (adenocarcinoma); In re Roundup
`
`Prods. Liab. Litig., Dkt. No. 1322, MDL No. 2741 (J.P.M.L. Oct. 10, 2019) (testicular
`
`seminoma). If cases that involve the common backdrop of alleged use of Roundup but different
`
`kinds of alleged personal injury do not belong in this MDL, then securities claims, which allege
`
`no personal injury and do not turn on exposure to glyphosate or claims of medical causation, do
`
`not belong here either. See also In re BP p.l.c. Sec. Litig., 734 F. Supp. 2d 1376, 1378 (J.P.M.L.
`
`2010) (refusing to add securities actions to MDL proceeding involving claims of property and
`
`economic damage arising from Deepwater Horizon disaster, where despite a common
`
`“underlying genesis,” the “true factual focuses of these two dockets are vastly different” and the
`
`“typical benefits of common discovery would likely be few”).
`
`In sum, while the Bayer Defendants are pleased to defend this newly-filed securities
`
`lawsuit in front of any Judge in this District, they do not agree with the movants’ attempt to
`
`conjure an overlap between their securities case and the personal-injury cases in the MDL, and
`
`respectfully submit that the securities and personal-injury cases are not related under the plain
`
`language of Civil Local Rule 3-12(a).
`
`
`
`BAYER DEFENDANTS’ RESPONSE TO ADMINISTRATIVE MOTION
`TO CONSIDER WHETHER CASES SHOULD BE RELATED
`MDL No. 2741, CASE NO. 3:16-MD-02741-VC
`
`
`-5-
`
`
`
`Case 3:16-md-02741-VC Document 11424 Filed 07/27/20 Page 6 of 6
`
`Dated: July 27, 2020
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`John F. Lynch (pro hac vice)
`WACHTELL, LIPTON, ROSEN & KATZ
`51 West 52nd Street
`New York, NY 10019
`Telephone: (212) 403-1000
`Facsimile: (212) 403-2000
`JFLynch@wlrk.com
`
`Attorneys for Defendants Bayer AG, Werner
`Baumann, Werner Wenning, Liam Condon,
`Johannes Dietsch, and Wolfgang Nickl
`
`
`
`
`
`BAYER DEFENDANTS’ RESPONSE TO ADMINISTRATIVE MOTION
`TO CONSIDER WHETHER CASES SHOULD BE RELATED
`MDL No. 2741, CASE NO. 3:16-MD-02741-VC
`
`
`-6-
`
`