Case 3:16-md-02741-VC Document 12006-1 Filed 11/03/20 Page 1 of 3
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`August 20, 2020
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`VIA ELECTRONIC MAIL ONLY
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`Hon. Vince Chhabria
`San Francisco Courthouse, Courtroom 4
`450 Golden Gate Avenue
`San Francisco, CA 94102
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`Re:
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`Confidential Status of Baum Hedlund Settlement Pursuant to Pretrial Order No. 216
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` Dear Judge Chhabria:
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`This letter constitutes Baum, Hedlund, Aristei & Goldman, P.C.’s (“Baum Hedlund”)
`confidential response to Pretrial Order No. 216, which requested information about the status of
`settlement. Baum Hedlund is particularly sensitive to the importance of confidentiality in this
`litigation, especially in light of Pretrial Order No. 200, which reminded the parties that all
`“settlement discussions in this MDL are confidential and that the having reviewed the joint
`statement submitted by Monsanto and the Plaintiffs’ Co-Leads, Baum Hedlund—a member of
`the Plaintiffs’ Executive Committee—does not believe Monsanto has complied with Pretrial
`Order No. 216 or been sufficiently candid about the nature and scope of settlements. Should the
`Court wish to explore any of the following in camera, pursuant to a Rule 408 conference, I am
`available and willing to answer any questions or provide details.
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`• Baum Hedlund has been in settlement discussions with Monsanto since the end of May 2019.
`Although, originally, Baum Hedlund advocated for a global settlement that would address all
`Roundup claims as part of a single settlement program, Monsanto elected, instead, to pursue
`individual settlements with specific firms, including Baum Hedlund.
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` •
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` On June 24, 2020, Bayer announced publicly that it entered into “a series of agreements that
`will substantially resolve major outstanding Monsanto litigation, including U.S. Roundup™
`product liability litigation” and specifically stated that “[t]he resolved claims include all
`plaintiff law firms leading the Roundup™ federal multi-district litigation (MDL) or the
`California bellwether cases[.]”1
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`1 https://media.bayer.com/baynews/baynews.nsf/id/Bayer-announces-agreements-to-resolve-
`major-legacy-Monsanto-litigation
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`Case 3:16-md-02741-VC Document 12006-1 Filed 11/03/20 Page 2 of 3
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`August 20, 2020
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`• As the Court knows, Michael L. Baum, of Baum Hedlund, is on the MDL Executive
`Committee and R. Brent Wisner, also of Baum Hedlund, is Co-Lead of the California
`Judicial Council Coordinate Proceeding (JCCP) in Alameda County. Baum Hedlund also
`played a leading role (along with the Miller Firm) in trying the Johnson and Pilliod cases and
`a supporting role in the Hardeman (along with Andrus Wagstaff, PC and the Moore Law
`Group) case, i.e., the “California bellwether cases” referenced in Bayer’s press release.
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` •
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` When the settlement was announced on June 24, 2020, Baum Hedlund was still in the
`process of finalizing a Master Settlement Agreement (“MSA”); however, most material terms
`were already agreed-to. When Baum Hedlund expressed concern to Monsanto about
`announcing a settlement before having a fully executed MSA, Monsanto assured that the deal
`was done, that the Bayer board of directors had approved the deal, and it was only a matter of
`ironing out the final details. Indeed, other law firms had already finalized and fully executed
`their MSAs with Monsanto. Relying on these assurances, Baum Hedlund sent out a “good
`news” letter to each client, stating Baum Hedlund had “reached a potential aggregate
`settlement with Monsanto Company/Bayer AG in the Roundup litigation that will enable our
`qualifying clients to receive an offer to settle their Roundup claims.”
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` Prior to June 24, 2020, Baum Hedlund did not know any details of a proposed class action
`settlement to address future claims. At no point was a Baum Hedlund settlement tied to or
`even discussed in the context of any class action.
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` Following Pretrial Order No. 214, and the subsequent withdrawal of a proposed class action
`settlement for future Roundup-NHL cases, Monsanto indicated that it no longer had authority
`to execute Baum Hedlund’s MSA. Monsanto indicated that it needed to obtain board
`approval, again.
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`In response, Baum Hedlund informed Monsanto that its settlement is not contingent any class
`action and that if such a requirement was being added after-the-fact, the deal was dead. This
`was particularly true considering Monsanto has already signed fully executed MSAs with
`other, non-trial counsel. After several meetings designed to salvage the deal, on July 13,
`2020, Baum Hedlund executed the fully negotiated MSA and agreed to give Monsanto until
`August 19, 2020 based upon a representation by Monsanto that it would obtain
`reauthorization from Bayer’s board of directors to sign Baum Hedlund’s MSA.
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` •
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` The Bayer board of directors met on August 19, 2020. At that meeting, however, Baum
`Hedlund’s deal was not presented for approval.
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`Instead, Monsanto now claims that the signing of Baum Hedlund’s MSA would have to be
`contingent upon Monsanto being able to reach a settlement for the “futures” class, and that
`Monsanto needed another three weeks to finalize that deal and obtain reapproval from
`Bayer’s board to sign the Baum Hedlund MSA.
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` •
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` •
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` Putting aside the viability of a such a class, it was never part of any the negotiated
`settlement—a settlement that Bayer’s board of directors previously approved before the June
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`Case 3:16-md-02741-VC Document 12006-1 Filed 11/03/20 Page 3 of 3
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`August 20, 2020
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`24, 2020 announcement. So, Baum Hedlund, again, refused to make its MSA contingent on
`getting a futures class settlement worked out.
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` •
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` On August 19, 2020, Monsanto terminated Baum Hedlund’s deal. Settlement discussions
`are, therefore, over.
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`With this background, Baum Hedlund would like to restart litigation in earnest. To that
`end, Baum Hedlund intends to file motions seeking the following relief:
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`1. Reopening discovery: There have been several actions taken by the Environmental
`Protection Agency since settlement discussions commenced in May 2019 as well as
`numerous journal articles published relating Roundup and NHL and the Agricultural Health
`Study. Baum Hedlund would like to conduct discovery related to Monsanto communications
`with the EPA (including text messages, emails, voicemails between Bayer’s general counsel
`and EPA officials), discovery about the latest scientific developments, and some third-party
`discovery focusing on recent ghostwriting efforts. In addition, Baum Hedlund would like to
`conduct discovery directly on Bayer AG, including its executives, to focus on what Bayer
`knew, learned, and decided about the carcinogenicity of Roundup and glyphosate during its
`acquisition of Monsanto. Baum Hedlund anticipates that this discovery would take no longer
`than 90 days to complete and involve no more than 10 additional depositions.
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`2. Amended complaints: Baum Hedlund will also be filing motions seeking to amend the
`complaints to add Bayer, AG as a defendant in all of Baum Hedlund’s cases. Recent
`developments, i.e., needing Bayer board approval, have made it clear that Bayer AG is an
`indispensable party to this litigation and would be on the hook for future judgments.
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`3. Setting trial dates: The only thing that motivates Monsanto to settle is trial—nothing else
`has a greater impact on their assessment of the risk of continued litigation. As such, Baum
`Hedlund will be filing a motion seeking: (1) the immediate ruling on all pending Daubert
`motions, (2) the immediate remand of all Wave 1 and 2 cases, (3) a ruling on the outstanding
`motion to remand in Olah v. Monsanto Company, et al. (3:20-cv-00129-VC) and, if denied, a
`trial date; and (4) setting trial before this Court (preferably as consolidated trials in light of
`COVID) to address all the cases that have proper venue in the Northern District of
`California.2
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`Sincerely,
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`By:
` R. Brent Wisner, Esq.
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`2 Previously, because Monsanto refused to consent to trial before this Court under Lexicon, there were only three
`cases this Court could, independently, set for trial (Hardeman, Stevick, and Gebeyehou). However, since then,
`Monsanto has removed several cases to this Court from Alameda County and, for some, the Plaintiffs are not
`seeking remand. Therefore, those cases are now properly before this Court and will need to be tried in the Northern
`District of California. By way of reference, Baum Hedlund has four such cases are is prepared to take one or all of
`them to trial by February 2021, if not sooner. (Burcina, 3:20-cv-04013-VC, Galang, 3:19-cv-06183-VC; Gordillo,
`3:20-cv-02840-VC; Luu, 3:19-cv-06195-VC).
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