Case 3:16-md-02741-VC Document 11439 Filed 07/29/20 Page 1 of 6
`
`BERNSTEIN LITOWITZ BERGER
` & GROSSMANN LLP
`JONATHAN D. USLANER (Bar No. 256898)
`(jonathanu@blbglaw.com)
`2121 Avenue of the Stars, Suite 2575
`Los Angeles, CA 90067
`Tel:
`(310) 819-3470
`Counsel for Plaintiffs City of Grand Rapids
`General Retirement System and City of Grand
`Rapids Police & Fire Retirement System
`[Additional counsel appear on signature page.]
`
`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 v. Bayer Aktiengesellschaft,
`Case No. 3:20-cv-04737-RS
`
`MDL No. 2741
`Case No. 3:16-md-02741-VC
`REPLY BRIEF IN SUPPORT OF
`ADMINISTRATIVE MOTION TO
`CONSIDER WHETHER CASES
`SHOULD BE RELATED
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`REPLY BRIEF IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER
`CASES SHOULD BE RELATED
`CASE NO. 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 11439 Filed 07/29/20 Page 2 of 6
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`Pursuant to Local Rule 3-12, the securities class action captioned City of Grand Rapids
`General Retirement System v. Bayer Aktiengesellschaft, No. 3:20-cv-04737-RS (N.D. Cal. filed
`July 15, 2020) (“Grand Rapids”), should be deemed related to In re Roundup Products Liability
`Litigation, No. 3:16-md-02741-VC (N.D. Cal. filed Oct. 4, 2016) (“Roundup MDL”), because both
`cases “concern substantially the same parties, property, transaction or event” and “there will be an
`unduly burdensome duplication of labor and expense or conflicting results if the cases are
`conducted before different Judges.” L.R. 3-12.
`Both Grand Rapids and the Roundup MDL arise from the same core issue: corporate
`liability relating to the carcinogenic effect of glyphosate—a key ingredient in the Roundup weed
`killer product. See Grand Rapids, ECF No. 1 ¶¶2-14, 46-58; Tierney v. Monsanto Co., No. 3:19-
`cv-01937-VC (N.D. Cal.), ECF No. 1 ¶¶1, 17, 131-68. That liability, which initially flowed to
`Monsanto Company (“Monsanto”) prior to the acquisition of Monsanto by Bayer AG (“Bayer”),
`is now the liability of Bayer—the real defense party-in-interest in all of the Roundup-related
`litigation.
`The truth about Bayer’s and Monsanto’s liability arising from the production and sale of
`Roundup weed killer was partially revealed through the jury verdict on causation rendered in phase
`1 of the bifurcated trial in Hardeman v. Monsanto Co., No. 3:16-cv-00525-VC (N.D. Cal.)
`(“Hardeman”)—the first case to proceed to trial in the Roundup MDL, over which this Court
`presided. See Grand Rapids, ECF No. 1 ¶57. Accordingly, Bayer’s and Monsanto’s liability
`relating to Roundup, particularly from the Roundup MDL—where thousands of Roundup-related
`cases are pending—is an essential and inextricable element of the securities fraud claims asserted
`in Grand Rapids. There is no doubt that the parties in Grand Rapids will explore the evidence
`established at the Hardeman trial and the extent to which new information regarding Bayer’s
`liability was disclosed by that verdict.
`At the heart of Grand Rapids are the extent of Bayer’s and Monsanto’s Roundup-related
`liability and what the executives of those companies knew about that liability. Plaintiffs in Grand
`Rapids will therefore seek discovery into what Monsanto and Bayer knew, and when, about the
`health risks posed by exposure to Roundup and its ingredients. Significantly, as Plaintiffs’ Co-
`REPLY BRIEF IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER
`CASES SHOULD BE RELATED
`CASE NO. 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 11439 Filed 07/29/20 Page 3 of 6
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`Lead Counsel in the Roundup MDL acknowledge, this evidence was already “thoroughly
`developed” in the Roundup MDL and was the subject of “comprehensive rulings on those subjects”
`by this Court. ECF No. 11289 at 2. As such, Defendants’ contention that relating Grand Rapids
`to the Roundup MDL will not promote judicial efficiency because the cases do not involve
`overlapping discovery is false.
`Similarly false is Defendants’ contention that the cases will not involve overlapping
`witnesses. In fact, several Bayer employees, who were previously Monsanto employees, were
`designated as relevant witnesses in the Roundup MDL to testify about the company’s knowledge
`of the carcinogenic effect of Roundup. For example, Samuel Murphey, formerly a global media
`relations advocate for Monsanto with a focus on reputational threats on the herbicide business, was
`designated as a relevant witness and testified in Hardeman. See Deposition Designations for Phase
`2 Witnesses, Hardeman, No. 3:16-cv-00525-VC (N.D. Cal. Mar. 10, 2019), ECF No. 183 (Ex.
`A).1 After Bayer’s acquisition of Monsanto, Murphey relocated to Germany to become Head of
`Global Issues Management for Bayer. Michael Koch, a former toxicologist at Monsanto who
`subsequently moved to Bayer in 2018 to work in a product safety role, also testified in Hardeman
`and will be a relevant witness in Grand Rapids. See id. These former Monsanto employees,
`among many others, possess information relevant to assessing the liability Monsanto faced from
`the Roundup lawsuits, which is integral to determining the veracity of Bayer’s statements about
`that liability. It is for these reasons, among others, that the Roundup MDL Plaintiffs’ Co-Lead
`Counsel acknowledged that Grand Rapids and the Roundup MDL involve “related, overlapping
`issues.” ECF No. 11289 at 3.
`Ignoring the clear similarities underlying the claims in both cases, Defendants instead
`contend that the cases are not related because Bayer is not a party to the Roundup MDL. That is
`simply untrue. Bayer is a defendant in several of the cases that have been included in the Roundup
`MDL. See, e.g., Tierney, No. 3:19-cv-01937-VC, ECF No. 1 ¶13; Payne v. Monsanto Co., No.
`
`1 All references to “Ex. __” are to the exhibits accompanying the Declaration of Jonathan D.
`Uslaner in Support of the Administrative Motion To Consider Whether Cases Should Be Related.
`REPLY BRIEF IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER
`CASES SHOULD BE RELATED
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`Case 3:16-md-02741-VC Document 11439 Filed 07/29/20 Page 4 of 6
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`3:19-cv-03567-VC (N.D.Cal.), ECF No. 1 ¶15; Colton v. Monsanto Co., No. 3:20-cv-04834-VC
`(N.D. Cal.), ECF No. 1 ¶5; Jizhak v. Monsanto Co., No. 3:20-cv-04646-VC (N.D. Cal.), ECF No.
`1 ¶9. Moreover, following its acquisition of Monsanto, Bayer became the real party-in-interest in
`the Roundup MDL and will ultimately be liable for any judgement or settlement arising from the
`allegations in both the Roundup MDL and Grand Rapids. Accordingly, even in cases where Bayer
`was not named as a defendant, it has been identified as the interested party. See, e.g., ECF No.
`1486 (Certification of Interested Entities or Persons identifying that “Bayer AG has a financial
`interest in a party to the proceeding”). Indeed, as the Roundup MDL Plaintiffs’ Co-Lead Counsel
`have acknowledged, the fact that Bayer is not named in many of the earlier-filed Roundup MDL
`cases is merely “a function of the fact that at the time the MDL was formed Bayer had not yet
`purchased Monsanto.” ECF No. 11289 at 2.
`Bayer’s contention that Grand Rapids and the Roundup MDL should not be related because
`“the respective proceedings [are] at such different stages” similarly misses the mark. ECF No.
`11424 at 3. The plaintiffs in Grand Rapids are requesting that the cases be related, not
`consolidated, and, as such, the stage of the proceedings is not relevant. See Fin. Fusion, Inc. v.
`Ablaise Ltd., No. C-06-2451 PVT, 2006 WL 3734292, at *4 (N.D. Cal. Dec. 18, 2006) (noting that
`“[r]elation is not consolidation” and “related cases may still proceed on different schedules”). In
`any event, even if Grand Rapids “lags significantly behind” the Roundup MDL, Grand Rapids
`“can proceed on its own timetable.” Id. Further, new cases are being filed and transferred into the
`Roundup MDL on a regular basis, and the stage of those cases is no different than Grand Rapids.
`See., e.g., ECF Nos. 11247, 11303, 11429.
`Defendants also fall short in their attempt to downplay the regularity with which securities
`class actions are transferred to the same court presiding over cases asserting different causes of
`action arising from the same core event or transaction. In the interests of judicial efficiency,
`securities class actions are routinely included in or coordinated with MDL proceedings arising
`from the same core event or transactions despite the fact that those cases assert different causes of
`action on behalf of different plaintiffs. See, e.g., In re Equifax Inc. Sec. Litig., No. 1:17-cv-03463-
`TWT, slip op. at 2 (N.D. Ga. Feb. 21, 2018), ECF No. 32 (ordering coordination between a
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`CASES SHOULD BE RELATED
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`Case 3:16-md-02741-VC Document 11439 Filed 07/29/20 Page 5 of 6
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`securities class action and a multidistrict litigation consumer case “in an effort to promote judicial
`and party efficiencies”) (Ex. B); In re Bank of New York Mellon Corp. Foreign Exch. Transactions
`Litig., 857 F. Supp. 2d 1371, 1373 (J.P.M.L. 2012) (centralizing case asserting securities fraud
`claims with cases asserting different causes of action in order to “avoid duplicative discovery” and
`“conserve the resources of the parties, their counsel, and the judiciary”); In re Standard & Poor’s
`Rating Agency Litig., 857 F. Supp. 2d 1360, 1361 (J.P.M.L. 2013) (centralizing consumer fraud
`and securities actions in order to “promote the just and efficient conduct of this litigation” and
`“eliminate duplicative discovery” and “conserve the resources of the parties, their counsel, and the
`judiciary”).
`The Roundup MDL has been before this Court since 2016, and the plaintiffs in Grand
`Rapids are not aware of any other Roundup-related cases pending before any other court in this
`District. As a result, the Court possesses a unique familiarity with the facts, evidence, and
`witnesses that will overlap with those in Grand Rapids. In addition, key developments in the
`Roundup MDL—like the Hardeman verdict—are crucial facts underlying the claims in Grand
`Rapids. Moreover, Defendants have not identified any prejudice that would result from relating
`Grand Rapids to the Roundup MDL. Accordingly, Grand Rapids should be deemed related to the
`Roundup MDL and reassigned to this Court for coordination between the two cases.
`
`REPLY BRIEF IN SUPPORT OF ADMINISTRATIVE MOTION TO CONSIDER WHETHER
`CASES SHOULD BE RELATED
`CASE NO. 3:16-md-02741-VC
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`Case 3:16-md-02741-VC Document 11439 Filed 07/29/20 Page 6 of 6
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`DATED: July 29, 2020
`
`Respectfully submitted,
`
`BERNSTEIN LITOWITZ BERGER
`& GROSSMANN LLP
`
`/s/ Jonathan D. Uslaner
`JONATHAN D. USLANER (Bar No. 256898)
`(jonathanu@blbglaw.com)
`2121 Avenue of the Stars, Suite 2575
`Los Angeles, CA 90067
`Tel:
`(310) 819-3470
`-and-
`
`HANNAH ROSS*
`(hannah@blbglaw.com)
`AVI JOSEFSON*
`(avi@blbglaw.com)
`1251 Avenue of the Americas
`New York, NY 10020
`Tel:
`(212) 554-1400
`Fax:
`(212) 554-1444
`
`Counsel for Plaintiffs City of Grand Rapids
`General Retirement System and City of Grand
`Rapids Police & Fire Retirement System
`* Pro hac vice forthcoming
`
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`CASES SHOULD BE RELATED
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