Case 3:16-md-02741-VC Document 12700-1 Filed 03/05/21 Page 1 of 7
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`Arthur H. Bryant (SBN 208365)
`BAILEY & GLASSER, LLP
`1999 Harrison Street, Suite 660
`Oakland, CA 94612
`Tel.: (510) 272-8000
`Fax: (510) 436-0291
`E-mail: abryant@baileyglasser.com
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`Benjamin L. Bailey (admitted pro hac)
`BAILEY & GLASSER, LLP
`209 Capitol Street
`Charleston, WV 25301
`Tel: (304) 345-6555
`Fax: (304) 342-1110
`E-mail: bbailey@baileyglasser.com
`
`Joshua I. Hammack (admitted pro hac)
`BAILEY & GLASSER, LLP
`1055 Thomas Jefferson Street NW, Suite 540
`Washington, DC 20007
`Tel.: (202) 548-7798
`Fax: (202) 463-2103
`E-mail: jhammack@baileyglasser.com
`
`Counsel for Amici Curiae
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`UNITED STATES DISTRICT COURT
`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. 3:16-md-02741-VC
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`OPPOSITION OF 93 LAW FIRMS
`AND 167 LAWYERS AS AMICI
`CURIAE TO MOTION FOR
`PRELIMINARY APPROVAL OF
`PROPOSED CLASS
`SETTLEMENT, APPOINTMENT
`OF INTERIM CLASS AND
`SUBCLASS COUNSEL,
`DIRECTION OF NOTICE
`UNDER FED. R. CIV. P. 23(e),
`SCHEDULING OF A FAIRNESS
`HEARING, AND STAY OF THE
`FILING AND PROSECUTION OF
`ROUNDUP-RELATED ACTIONS
`BY SETTLEMENT CLASS
`MEMBERS
`The Honorable Vince Chhabria
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`Date: March 31, 2021
`Time: 10:00 am
`Courtroom 4 – 17th Floor
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`AMICI BRIEF OF LAW FIRMS AND LAWYERS OPPOSING PRELIMINARY APPROVAL
`MDL NO. 2741, CASE NO. 3:16-md-02741
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`Case 3:16-md-02741-VC Document 12700-1 Filed 03/05/21 Page 2 of 7
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`Last July, this Court described Monsanto’s first proposed Roundup “futures” class
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`settlement (“Plan A”) as “questionable,” not “appropriate,” and “dubious,” articulating several
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`specific “concerns” making the Court “skeptical” of the settlement’s “propriety and fairness”—
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`and thus of why any “potential class member” would “want” to be part of it:
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`[I]t’s unclear how the [settlement] . . . would benefit a class of Roundup users
`who either have cancer but have not yet sued Monsanto or have not yet developed
`cancer . . .
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`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 any 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? . . .
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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. . . .
`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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`Doc. 11182 at 3. In light of this rebuke, Monsanto and putative class counsel promptly withdrew
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`Plan A.
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`Now they are back with “Plan B”—but little has changed. Although some proposed terms
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`have been tweaked, the major components that drew this Court’s skepticism—lack of
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`meaningful notice, the waiver of punitive damages, and the formation of a secret science panel—
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`remain intact. To those exposed to Roundup, “Plan B” is a solution in search of a problem. The
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`only purported benefit being offered is an administrative system whereby putative class members
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`can submit their case to a claims administrator and be provided an offer. However, there is
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`nothing stopping Monsanto from doing that, by itself, today. There is no need for judicial
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`imprimatur, much less for this class to be certified.
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`Amici Curiae are 93 law firms and 167 lawyers that write collectively from their long and
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`AMICI BRIEF OF LAW FIRMS AND LAWYERS OPPOSING PRELIMINARY APPROVAL
`MDL NO. 2741, CASE NO. 3:16-md-02741
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`Case 3:16-md-02741-VC Document 12700-1 Filed 03/05/21 Page 3 of 7
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`varied experience representing people injured physically, emotionally, or financially by the
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`conduct of others.1 This collective experience gives amici meaningful perspective on the best
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`ways that our clients and other injury victims can engage with the judicial system. To us, it is
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`clear that the proposed settlement before this Court would not benefit the injured class members.
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`Nor would this type of “settlement” benefit people injured by widespread corporate misconduct
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`in any of the areas of law in which we practice.
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` We briefly discuss just a few of the settlement’s serious problems below.
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`Wholesale Release of Punitive Damages: The settlement gives up all of the class
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`members’ punitive damages claims. The sole justification provided for this is that Monsanto has
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`been “punished” and “deterred” enough by the payment of up to $9,600,000,000 in settlements.2
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`Under no federal or state law, however, does a calculation exist to justify barring an individual
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`from asking that the perpetrator of her or his injuries be punished in this way. In fact, no federal
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`or state law permits any injury victim to be barred from seeking punitive damages because a
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`wrongdoer reached settlements with others—or, for that matter, paid compensatory or punitive
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`damages to others, which must be limited to amounts appropriate for the harm the wrongdoer did
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`to those individuals. Moreover, Monsanto has continued to manufacture its product in spite of
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`the cancer it was causing, continued to manufacture and sell its product after these verdicts, and,
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`as part of this “settlement,” will be permitted to continue to manufacture its dangerous product
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`1 A list of the law firms is attached as Exhibit A. A list of the lawyers is attached as Exhibit B.
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` 2
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` There have also been three punitive damages awards. See Hardeman v. Monsanto Co., 385 F.
`Supp. 3d 1042, 1048 (N.D. Cal. 2019) (punitive damages reduced from $75 million to $20
`million); Johnson v. Monsanto Co., No. GC16550128, 2018 WL 5246323, at *5 (Cal. Super.
`Oct. 22, 2018) (punitive damages reduced from $250 million to $39.25 million); Johnson, 52
`Cal. App. 5th 454, 463 (2020) (punitive damages reduced further to $10.25 million); Pilliod v.
`Monsanto Co., No. RG-17-862702, 2019 WL 3540107, at *12 (Cal. Super. July 26, 2019)
`(punitive damages for two plaintiffs reduced from $1 billion each to $24.5 million and $44.8
`million). Hardeman and Pilliod are on appeal.
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`unabated long into the future—all while class members and other members of the public will
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`continue to be exposed.3 This is neither punishment nor deterrence. It is an unconscionable gift
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`to Monsanto.
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`A Four-Year Stay on Judicial Proceedings: The settlement stays all litigation for class
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`members for four years. This is anathema to the effective representation of injured individuals.
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`Why should people wait four years to be able to file a lawsuit, and then, with the congestion of
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`courts, another three to five years before a trial? In those four years and the later intervening
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`time, no doubt people will die, many as a result of the cancer that Monsanto gave them, and
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`potentially lose their rights to some causes of action and/or measures of damages. Recognizing
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`this, many courts, as in California’s CCP36, expedite hearings so such individuals will not have
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`to wait. The proposed settlement, in contrast, delays their hearings. In these cases, justice
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`delayed will truly be justice denied. Why should injured victims be deprived of the relief that
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`they so urgently need? Such a stay is unprecedented in our jurisprudence. It should not be
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`countenanced by this or any other court in any litigation involving injured individuals.
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`A Secret Science Panel: The ostensible justification for a four-year stay is the formation
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`of a science panel. The premise for this panel of scientists, constructed to exclude anyone in the
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`world who has already researched the product and found it in any way dangerous, is that it will
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`operate in total darkness, its work hidden, its process hidden, and its members only subject to a
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`single carefully controlled deposition. Its conclusions will then be presented to juries as
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`“stipulated facts” from an “independent” panel. Regardless of the weight juries and other judges
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`will give this, why is this something that is advantageous to victims? Which plaintiff in any
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`3 Without going into detail, in In Re: Diet Drugs (Phentermine/Fenfluramine/Dexenfluramine)
`Prods. Liab. Litig., 369 F.3d 293, 317 (3d Cir. 2004), the lead case relied on in the Motion for
`Preliminary Approval, Doc. 12509 at 13 n.1, the offending product had long been off the market
`and its use was by prescription.
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`Case 3:16-md-02741-VC Document 12700-1 Filed 03/05/21 Page 5 of 7
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`litigation has ever requested such a panel? Our court systems are public for a reason. Factual
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`determinations should never be made in secret by a private group, not subject to review or cross-
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`examination. Any secret, private expert panel desecrates the openness and transparency of the
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`legal process—and eviscerates the right to trial by jury. It violates a core principle at the heart of
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`our common law system: that juries and (in appropriate circumstances) judges decide critical
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`issues of fact.
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`In conclusion, we believe that this proposed settlement will not benefit injured Roundup
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`victims, but, instead, will merely allow Monsanto to cap its risk and calculate the injuries and
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`suffering it has caused, is causing, and will continue to cause as just one more cost of doing
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`business. People exposed to dangerous products should not be forced, generally unknowingly, to
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`give up rights that they otherwise would have. It is not the judicial system’s job to allow
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`Monsanto to continue to manufacture its product and be able to calculate its potential risk. The
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`judicial system should prevent such an outcome, not bless it. Its job is to give aggrieved parties
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`the opportunity to make themselves whole, seek recompense for their injuries, and, when harmed
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`by malicious conduct, punish the party who hurt them.
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`We, therefore, respectfully submit that this Court should deny approval of this
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`repackaged class settlement. Such a settlement should never be approved.
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`Dated: March 5, 2021
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`Respectfully submitted,
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`/ s/ Arthur H. Bryant
`Arthur H. Bryant (SBN 208365)
`BAILEY & GLASSER, LLP
`1999 Harrison Street, Suite 660
`Oakland, CA 94612
`Tel.: (510) 272-8000
`Fax: (510) 436-0291
`E-mail: abryant@baileyglasser.com
`
` Benjamin L. Bailey (admitted pro hac)
`BAILEY & GLASSER, LLP
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`AMICI BRIEF OF LAW FIRMS AND LAWYERS OPPOSING PRELIMINARY APPROVAL
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`Case 3:16-md-02741-VC Document 12700-1 Filed 03/05/21 Page 6 of 7
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`209 Capitol Street
`Charleston, WV 25301
`Tel: (304) 345-6555
`Fax: (304) 342-1110
`E-mail: bbailey@baileyglasser.com
`
` Joshua I. Hammack (admitted pro hac)
`BAILEY & GLASSER, LLP
`1055 Thomas Jefferson Street NW, Suite 540
`Washington, DC 20007
`Tel.: (202) 548-7798
`Fax: (202) 463-2103
`E-mail: jhammack@baileyglasser.com
`
`Counsel for Amici Curiae
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`CERTIFICATE OF SERVICE
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`I hereby certify that on March 5, 2021, the foregoing was electronically filed with the
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`Clerk of the Court using the CM/ECF system, which will send notification of such filing on
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`counsel of record.
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`Dated: March 5, 2021
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`Respectfully submitted,
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`______
` /s/ Arthur H. Bryant
`Arthur H. Bryant (SBN 208365)
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