Jury Awards California Couple $2 Billion Against Bayer’s Roundup
Jury verdict comes as Bayer faces shareholder revolt, exposure to some 13,400 claims tying it weedkiller to cancer. Jury Awards California Couple $2 Billion Against Bayer’s Roundup
Jury Awards California Couple $2 Billion Against Bayer’s Roundup
A jury Monday awarded $2.055 billion to a California couple who blamed Bayer’s Roundup weedkiller for causing their cancer, the largest such verdict to date and one that adds significant pressure to a company struggling to contain the fallout from last year’s acquisition of Monsanto Co.
The verdict by the Northern California jury is the third straight trial loss for Bayer over the safety of Roundup. Bayer is facing a revolt from shareholders over the Monsanto deal, which exposed Bayer to some 13,400 claims tying Roundup to cancer.
Two previous trial losses have helped wipe more than 30% off Bayer’s share price. Last month, a majority of Bayer shareholders refused to endorse management’s actions in the past year, indicating that investors lack confidence in how the company is being run.
The company now has until August to reevaluate its legal strategy and try to appease investors before the next scheduled trial. That trial will be the first to unfold outside the San Francisco Bay Area, often seen as an unfavorable setting for corporate defendants. It will be in St. Louis, the former headquarters of Monsanto and now home to Bayer’s global seed business.
Bayer has appealed a $78.5 million verdict reached in August, the first Roundup case to go to trial. It has said it would appeal the second, a more than $80 million jury award decided in March.
Some investors have pushed Bayer to settle the cases soon, though companies facing product-liability claims often bring a dozen or more cases to trial before seriously entering settlement talks.
Reaching a settlement in the case is complicated by the fact that the product continues to be sold to consumers and farmers and doesn’t carry a cancer-warning label, which means the potential pool of plaintiffs could expand indefinitely. The company could reach a deal with the current batch of plaintiffs and set aside money to pay out future claims, or continue fighting case by case to gather more data points. People familiar with Bayer say the company isn’t planning to settle before at least a first few cases have gone through appeal.
Bayer said it is disappointed in the verdict and plans to appeal. The company added that the litigation “will take some time before it concludes” since appeals are pending and that it would “continue to evaluate and refine its legal strategies as it moves through the next phase of this litigation.”
R. Brent Wisner, an attorney for the plaintiffs, thanked the jurors for finding “that the science shows there are serious health hazards associated with Roundup and that Monsanto did nothing to warn people about the risk.”
Elizabeth Burch, a law professor at the University of Georgia, said the third trial loss was significant “given the learning curve” that might have been expected of the company after the earlier defeats. “Whatever the plaintiffs’ lawyers are doing, they have a pretty good formula,” she said.
The jury in the third case found Bayer liable for the non-Hodgkin lymphoma diagnoses of Alva and Alberta Pilliod, a married couple in their 70s who used Roundup on their San Francisco Bay Area property for 35 years. The two were diagnosed four years apart, in 2011 and 2015; both are in remission.
The money awarded includes $2 billion in punitive damages and $55 million in compensatory damages to the couple. An attorney for the plaintiffs suggested to the jury that they award $1 billion in punitive damages to send a message to the company. Large damages awards are often reduced on appeal; the judge overseeing the first Roundup trial cut punitive damages in the case by more than $210 million. Bayer called the punitive awards “excessive and unjustifiable.”
The trial unfolded much like the earlier two, with sparring over scientific studies, the credibility of expert witnesses and the relative importance of a 2015 designation by a World Health Organization branch that glyphosate, the primary ingredient in Roundup, is likely carcinogenic to humans.
Attorneys for the plaintiffs walked jurors through scientific studies of rodents, cells and human populations that they say show glyphosate and Roundup are carcinogenic. Bayer lawyers countered that hundreds of studies have shown it to be safe, and pointed to regulators like the U.S. Environmental Protection Agency that have approved the product. The EPA in late April reaffirmed its long-held conclusion that glyphosate, the world’s most widely used herbicide, is safe when used as directed and doesn’t cause cancer.
The health histories of Mr. and Mrs. Pilliod also figured prominently in Bayer’s case. Lawyers for the company pointed to prior cancer diagnoses, family histories of cancer and autoimmune diseases that they said elevated the couple’s risk for non-Hodgkin lymphoma—not their weedkiller use. Jury Awards California Couple $2 Billion Against Bayer’s Roundup
Bayer reiterated Monday that it believes scientific studies and the EPA’s conclusions back up Roundup’s safety, and said the jury was presented with “cherry-picked findings from a tiny fraction of the volume of studies available.”
The case was the first to go to trial of hundreds of lawsuits consolidated in California state court. A judge put the Pilliods’ case on an accelerated timeline because of their age.
Hundreds of other cases are part of multidistrict litigation in federal court in San Francisco. The judge overseeing those cases recently called off two scheduled trials and ordered the parties to try resolving the claims in mediation.
Bayer and its shareholders are now setting their hopes on the first appeal in the case of former school groundskeeper Dewayne Johnson, expected to be argued before a California state appellate court before the end of the year.
Costco Wholesale Corp. pulled Roundup from its shelves, but sales overall don’t seem to have suffered much from the litigation. Scotts Miracle-Gro Co. , which markets Roundup to home-and-garden retailers in the U.S., said its Roundup sales increased 20% in the first three months of the year from the same period last year.
Updated: 9-5-2019
Bayer’s Roundup Woes Deepen as Germany Bans Key Chemical
Germany has approved a plan to gradually restrict the use of glyphosate and ban it outright from the end of 2023.
Bayer AG’s efforts to fend off thousands of lawsuits against its Roundup herbicide were dealt a symbolic blow Wednesday when Germany, the company’s home country, said it would ban the product’s key ingredient.
The move is unlikely to directly affect the chemicals and pharmaceuticals group’s bottom line, because Germany is a negligibly small market for Roundup. While the decision was motivated by environmental considerations rather than glyphosate’s alleged potential to cause cancer, which is at the center of the lawsuits, the optics of Roundup being banned in Bayer’s backyard are jarring amid the company’s insistence that it is safe to use.
After Bayer acquired Roundup inventor Monsanto Co. in 2018, the German company was hit by lawsuits from 18,400 farmers, hobby gardeners and others who said Roundup made them ill. The company is appealing the verdicts and has pointed to the scores of markets where glyphosate is licensed as evidence of its safety.
Nonetheless, Germany, where Bayer was founded and is based, has approved a plan to gradually restrict the use of glyphosate, the main ingredient in Roundup, and ban it outright starting at the end of 2023, shortly after a Europe-wide license for the chemical expires.
The head of Bayer’s crop-science business, which now includes Monsanto, said the company disagreed with the move to a unilateral ban.
“The ruling ignores decades of scientific judgment from independent regulatory agencies around the world that glyphosate is safe when used properly,” Liam Condon said.
The ban would have very little impact on Bayer’s sales, analysts said. Bayer says Europe accounts for less than 10% of its total glyphosate sales, which the company doesn’t break out. The bulk of glyphosate sales are generated in the U.S. and South America.
Bayer said pro forma crop-science sales reached €19.3 billion ($21.2 billion) in 2018, assuming Monsanto had been part of the business for the entire year and not just since June 7, 2018, when the acquisition closed.
The planned ban highlights the growing resistance to glyphosate in Europe, which could lead to European Union countries blocking another bloc-wide license in late 2022 when they are due to vote on a renewal.
In July, Austria became the first European country to impose a ban on glyphosate. In France, a court banned a Roundup brand earlier this year, while some mayors this summer moved to ban glyphosate in their municipalities.
The topic has split the EU for years. In 2017, a new five-year license was almost voted down until a last-minute nod from Germany tipped the balance. The surprise decision, made by the agriculture minister against the advice of the rest of the government, sparked an uproar in the country.
Other countries outside of Europe have adopted total and partial glyphosate bans in the past, such as Colombia and El Salvador. Sri Lanka in 2015 was the first country to issue a national ban, but later revoked it.
Before glyphosate is banned outright, Germany will push to gradually reduce its use, first banning it in gardens and parks and imposing stricter rules for its use in agriculture.
Updated: 11-22-2019
Monsanto Pleads Guilty To Spraying Banned Pesticide In Hawaii
Company agrees to pay $10.2 million in fines.
Monsanto, a crop sciences unit of Bayer AG, has agreed to pay $10.2 million in fines and plead guilty to spraying a banned pesticide in Hawaii, the U.S. Department of Justice said late Thursday.
The Justice Department said that Monsanto sprayed the banned pesticide, Penncap-M, on research crops in Maui, Hawaii, despite the 2013 ban by the Environmental Protection Agency. Monsanto sent workers back into the area after seven days even though the company knew nobody should enter for 31 days.
“The illegal conduct in this case posed a threat to the environment, surrounding communities and Monsanto workers,” said U.S. Attorney Nick Hanna in prepared remarks.
Monsanto couldn’t immediately be reached for comment.
Monsanto received a deferred prosecution agreement on two felony counts of unlawfully storing Penncap-M, which is considered an “acute hazardous waste.”
Under the agreement, the government will dismiss the felonies in two years if Monsanto follows the terms and keeps an environmental compliance program at all its Hawaii sites. Monsanto will also pay a $6 million criminal fine, $4 million in community service payments and an additional $200,000 fine.
The company’s guilty plea adds to a string of legal issues at Monsanto’s German parent Bayer, which said in September 2016 it would acquire Monsanto and closed the acquisition last year for $63 billion. Since August 2018, three U.S. juries have found that Monsanto’s signature herbicide, Roundup, caused the cancer non-Hodgkin lymphoma, slashing around 30% off Bayer’s market value.
In late October, Bayer said the number of plaintiffs arguing Roundup caused cancer has more than doubled to 42,700 over the course of three months.
Updated: 11-25-2019
Inside The Mass-Tort Machine That Powers Thousands of Roundup Lawsuits
The weedkiller made by Bayer is the target of a sophisticated legal ecosystem; ‘call the number on your screen now’.
In late 2016, a group of plaintiffs’ lawyers took the stage at the year’s largest gathering of their colleagues to talk up a promising new target.
For 30 minutes, they laid out arguments linking the popular weedkiller Roundup to cancer. An arm of the World Health Organization had pegged Roundup’s main chemical ingredient as a probable carcinogen the year before, and it was quickly becoming a focus of the plaintiffs’ bar.
Some product-liability lawyers in the audience in Las Vegas were skeptical. Tying exposure from everyday products like Roundup to cancer often is less straightforward than linking illness to medications or medical devices, said Chase Givens, a lawyer with the Cochran Firm who attended the event. But the presenters’ track records mounting complex cases got the audience’s attention.
Three years later, more than 42,700 farmers, landscapers and home gardeners have sued Bayer AG, Roundup’s manufacturer, claiming the company knew the herbicide posed a cancer risk but failed to warn consumers. Bayer is contesting the lawsuits and argues that scientific research and regulatory reviews, including from the Environmental Protection Agency, prove Roundup’s safety.
Behind the surge in lawsuits is a little-known, sophisticated legal ecosystem that includes marketing firms that find potential clients, financiers who bankroll law firms, doctors who review medical records, scientists who analyze medical literature and the lawyers who bring the cases to court.
Individual plaintiffs can become commodities that are bought and sold by marketers, with prices based on demand. The more lawsuits that get filed, the more pressure companies face to settle.
Building up thousands of cases against a single target gains momentum at conferences like the one in Las Vegas, called Mass Torts Made Perfect. The twice-yearly shindig is product-liability law’s big stage, drawing more than a thousand plaintiffs’ lawyers and vendors vying for their business over informational panels, cocktail hours and appearances by celebrities such as Peyton Manning and Nelly.
The real headliners are the target products. They include e-cigarettes, baby powder, firefighting foam and birth-control devices. None have sparked the same level of interest as the weedkiller.
The Roundup litigation is a big threat to Bayer, the 156-year-old German company that last year acquired Monsanto, Roundup’s inventor and main marketer, for $63 billion. Since the deal closed, juries have awarded $2.4 billion to plaintiffs in the first three Roundup cases to go to trial. Bayer’s shares have dropped 27% since the first verdict in August 2018. Bayer is appealing the three awards, which courts have reduced to $190.5 million.
Additional Trials Have Been Delayed As The Company And Plaintiffs’ Lawyers Discuss Settlement
The herbicide first caught plaintiffs’ lawyers’ eyes in the spring of 2015, when the International Agency for Research on Cancer, a branch of the World Health Organization, deemed Roundup’s active ingredient, glyphosate, “probably carcinogenic” to humans. Bayer rejected that finding, accusing the group of cherry-picking studies and ignoring others that regulatory agencies have relied on to determine Roundup’s safety.
Just days after the WHO agency published its findings, personal-injury law firm Weitz & Luxenberg PC registered the domain name www.RoundupInjuries.com. Within months, television advertisements hit the air seeking Roundup users who got cancer. Before year’s end, the first lawsuits were filed.
Lawyers have clamored to sign up Roundup plaintiffs, making it the top product targeted by mass-tort lawyers and marketing companies in recent years, according to X Ante, which sells data to companies on mass-tort advertising. Between January and September, the weedkiller appeared in 654,280 broadcast and cable-TV advertisements costing an estimated $77.8 million, an X Ante analysis of Kantar Media CMAG and Media Monitors data shows. The number of advertisements is four times that of the next most-targeted product or drug for mass-tort lawsuits.
Bayer blamed lawyer advertisements for more than doubling the number of plaintiffs from July to October.
Bayer officials and industry groups say the ability of plaintiffs’ lawyers to rapidly build injury lawsuits burdens companies with costs and threatens innovation, raising the prospect that a product declared safe now could be targeted for damages years or decades later.
Personal-injury lawyers say they advocate for consumers with no other recourse against big companies—and that their sprawling system lets them compete against deep-pocketed corporations.
“We operate just like any other industry,” said Mike Papantonio, a Florida plaintiffs’ lawyer who founded Mass Torts Made Perfect. “One firm may be wonderful on memos, appeals and briefings, another firm is really good at trying the case.”
The U.S. Chamber Institute for Legal Reform, a frequent critic of the plaintiffs’ bar, estimates that in 2016 plaintiffs’ lawyers collected $77 billion in fees on tort cases. Lawyers collect a percentage of settlements struck between companies and plaintiffs.
The first step is getting the word out about an allegedly harmful product, often through TV and online advertisements.
“If you or someone you love used Roundup, and were diagnosed with cancer, call the number on your screen now,” says one TV spot sponsored by Guardian Legal Network. The ad touts the multimillion-dollar verdicts and urges callers to file a claim before it’s too late.
Callers to Guardian, one of the largest mass-tort marketing companies, are routed to call centers around the country. There, operators run through a list of questions: Has the caller used Roundup? When, and for how long? When was the caller diagnosed with cancer, and what type?
Law firms also buy targeted online ads and create social-media pages, some of which steer users to automated chat programs that run through similar screening questions.
If hotline callers qualify as potential plaintiffs, the lead-generation companies hired by law firms send them law-firm contracts to sign and request their medical records for further screening. Other lead-generation companies working on spec sell the leads to law firms. Brokers sometimes stand between a lead generator and a law firm.
Tennessee resident Sherry Brobeck was browsing Facebook about two years ago when an advertisement popped up, alerting non-Hodgkin lymphoma patients that lawyers were evaluating cases for potential Roundup lawsuits.
“I called them immediately,” Ms. Brobeck said. Her husband, Michael, died from that cancer in early 2010, and she had searched unsuccessfully for a local lawyer to file a lawsuit. She said the family’s oncologist wondered at the time of her husband’s 2009 diagnosis if the cancer arose from the Roundup Mr. Brobeck bought by the case to clear weeds from land in the Appalachian foothills they converted to an RV campground.
Ms. Brobeck had struggled to repay debts racked up after her husband’s uninsured cancer treatments and for a time took a second job as a grill cook. “I didn’t have anything to lose,” Ms. Brobeck said of her decision to call.
After giving an operator her basic information, she got a call two hours later from a lawyer at Louisiana-based law firm Pendley, Baudin & Coffin LLP. He asked about her husband’s illness, she said, whether she had receipts for their Roundup purchases, and if she could send a copy of the death certificate. She did.
While Ms. Brobeck worked to pay down property liens brought on by her husband’s medical bills, her lawyers contacted the St. Louis-based Onder Law Firm, a big personal-injury firm. Onder was compiling plaintiffs to sue Bayer in St. Louis Circuit Court, which has attracted thousands of other lawsuits over drugs and medical devices.
Pendley and Onder struck a deal for Ms. Brobeck’s case that is typical in the personal-injury law business. Onder handles local matters such as filings and jury selection, and if the case makes it to trial, Pendley lawyers will argue it, lawyers for the firms say. If Ms. Brobeck’s case settles, Pendley will receive the majority of the fees, with a smaller amount going to Onder. In November 2018, Ms. Brobeck became part of a group suing Bayer in a St. Louis court.
Lead generators can charge law firms for each signed plaintiff, or a flat monthly rate. The price of a mass-tort client, like any commodity, rises and falls depending on market interest.
Legal marketers say the price to acquire a signed Roundup client peaked in August and September at between $3,000 and $6,000 a plaintiff, after a report that Bayer was close to settling the litigation. Lower-value cases, by comparison, can cost $100 or less per plaintiff.
Edward Lott, president of lead-generation firm ForLawFirmsOnly Marketing, said his law-firm clients have paid around $1,350 each for “zero-risk” Roundup leads that he will replace with a new plaintiff if, for instance, their medical records don’t back up the injuries they described over the phone.
“For every big mass-tort attorney out there, it’s very much a science in how much they’re paying per lead,” said Scott Hardy, a marketer who charges law firms a flat rate of as much as $15,000 a month to sponsor case-specific pages on his website, TopClassActions.com.
Consumer Attorney Marketing Group, one of the largest lead generators, sends law-firm clients data on how many leads come a week from their TV, radio and online advertisements. Ads the company runs for hundreds of law firms send between 20,000 and 25,000 calls a month to a call center in Hermosillo, Mexico. Those who meet initial standards get a call from a CAMG employee in California, who walks them through the paperwork needed to sign with a law firm.
On a recent afternoon, CAMG’s Los Angeles call center buzzed with conversations between operators and potential plaintiffs for cases related to metal hip implants, asbestos and contaminated Flint, Mich., water. Between 7,000 and 8,000 callers a month become signed clients, said company co-founder Steve Nober. The TV ads, he said, help people connect an injury or disease to its possible cause. “It’s that ah-ha moment,” he said.
Roundup has been one of the firm’s top campaigns for years, Mr. Nober said. His data shows Roundup ads have had the most success airing during daytime reruns of programs including “The FBI Files,” “M*A*S*H” and “My Wife and Kids,” a time of day when people who have purchased garden or landscaping items are likely to be watching.
Mr. Lott and other marketers say some law firms will sign up almost anyone who says they used Roundup and got non-Hodgkin lymphoma, the primary cancer the litigation is focused on. Others want only those who used Roundup at least 30 times a year for many years, or those who used Roundup at work.
Lawyers and marketers describe the mass-torts practice like an investment portfolio: Firms take on some high-risk cases that are years from a payday but cheaper to acquire, and pricier ones that are surer bets and close to a conclusion. If done right, money will trickle in regularly as cases resolve.
Plaintiffs’ law firms may spend $20 million to $30 million pursuing long-term, complex cases like Roundup, said Mr. Papantonio, the Florida lawyer who has represented plaintiffs in large cases such as the BP PLC oil-spill litigation. “You have to have a war chest so you can run as long as you want to,” said Mr. Papantonio, who estimates his firm represents about 2,000 Roundup plaintiffs.
Jean McCrea called a number from a TV advertisement earlier this year that said Roundup could be linked to a cancer her husband has had since 2013, chronic lymphocytic leukemia. She had heard before that Roundup could be carcinogenic, but didn’t realize CLL, a type of non-Hodgkin lymphoma, could qualify for a lawsuit.
“We’ve never done anything like this,” the 74-year-old Arizona resident said of responding to the advertisement from local law firm Goldberg & Osborne. She told the firm her husband used Roundup on a half-acre property sprinkled with fruit trees they used to live on in Madera, Calif. After a few phone calls, she was sent paperwork to sign.
A lawsuit was filed on the couple’s behalf in Arizona in August and sent to U.S. District Court in San Francisco, where thousands of federal-court Roundup lawsuits have been centralized.
Retired Californian Brenda Huerta didn’t know lawyers had gone forward with a lawsuit in her name for months after its January 2016 filing, she said, until her sister’s friend saw mention of it online.
Ms. Huerta had been in remission from cancer for about a year when a call came in 2014 from her husband’s health insurer looking to recoup the more than $1 million it paid to treat her non-Hodgkin lymphoma. “We were so grateful to them, we said absolutely,” the 65-year-old Ms. Huerta said.
A lawyer at the Miller Firm in Virginia told her the cancer could be tied to years of Roundup exposure. She and her husband had used it in their yard, as had sod farmers who leased their land in Tehachapi, Calif.
Companies facing such lawsuits argue the mass-tort machine encourages the proliferation of claims, which in turn pressures them to settle, even if they believe their products are safe. They say the system makes it easy for lawyers to file nearly identical complaints in rapid succession, with just a few paragraphs changed about each plaintiff, giving defendants little to go on to gauge the legitimacy of any given case.
Defense lawyers point to the Vioxx painkiller litigation, in which court documents show that nearly one-third of plaintiffs who had filed claims by the time of a $4.85 billion settlement with drugmaker Merck & Co. failed to meet the criteria necessary to collect any money.
TV lawyers who pass on clients to bigger firms “are building inventory without close scrutiny being given to the claims that they have filed, and hoping that hard work by other lawyers will lead to a mass settlement that will allow them to cash in,” said Mark Behrens, a partner at Shook, Hardy & Bacon LLP who advises Bayer on mass-tort issues.
Bayer said it would like to see more transparency around who is sponsoring and funding plaintiffs’ lawyer advertising.
Gary Falkowitz, whose call-center company Intake Conversion Experts has signed up 50,000 cases for lawyers since 2016, sees it differently. “Claimants will have an almost impossible job to bring these claims on their own,” he said. “The more people law firms are representing, the more of a chance you can hold these companies responsible.”
A rumor this summer that Bayer had made a multibillion-dollar settlement offer, said Mr. Lott, caused the marketer’s phone to ring off the hook, and drove up the price brokers were charging for leads. Anticipation grew for a payout to be shared by the advertising law firms, legal funders, trial lawyers and Roundup users.
“What they hope for is that the Monsantos of the world come in and say, here’s $10 billion, spread it how you like,” Mr. Lott said of the lawyers he sells leads to. “That’s what they’re looking for.”
Updated: 1-6-2020
Roundup Ruled the Farm, Now Its Maker Has a Challenger
Bayer’s herbicide is the world’s most heavily used. The race to make up for its failings is a clash of corporate rivals.
Before it was targeted by tens of thousands of plaintiffs in lawsuits, Roundup was the king of the field—the world’s most heavily used weedkiller. Now it’s mired in court over claims it caused cancer and viewed as a major liability for its parent company, Bayer AG . On top of that, some weeds have evolved to survive Roundup.
That has left an opening for a new contender to cover for Roundup’s failings, kicking off a clash of agribusiness rivals as fierce as Pepsi’s showdown with Coca-Cola on store shelves.
At stake are billions of dollars in herbicide and seed sales, and influence over how farmers manage crops for decades.
Bayer, the German inventor of Aspirin, was already a leading supplier of pesticides when it took control of Roundup as part of its acquisition of Monsanto Co. in 2018. The merged company is the largest seller of seeds and crop chemicals.
Bayer’s big rival, seed and pesticide maker Corteva Inc., is making moves to woo farmers away from the giant. On a sticky August morning, Corteva field specialist Dan Puck stood before dozens of farmers in an air-conditioned tent with screens flashing a green thumbs-up logo of a new weed spray named Enlist.
Corteva erected the tent to help promote the weedkiller at the late-summer Farm Progress Show. Following a magician performing Enlist-theme tricks, farmers recounted losing battles against Roundup-tolerant weeds like marestail, waterhemp and palmer amaranth.
The Enlist spray, Mr. Puck told them, was a watershed in their war on Roundup-resistant weeds. “People want a weed-control system they have confidence in,” he said. “We’re filling a void right now.”
Roundup revolutionized farming when, combined with seeds genetically engineered to tolerate the spray, it vastly simplified weed control and helped farmers expand.
It is still No. 1, by most estimates. Many in the industry expect it to stay there for the time being, because it still kills a wider range of weeds than most other herbicides. It is used on 65% of major U.S. crops and is the biggest global herbicide brand, according to research firm Phillips McDougall.
Roundup’s dominance is waning, though, as U.S. farmers are forced to supplement Roundup with other herbicides to dispatch evolved weeds. That’s where Corteva is taking on Bayer.
Corteva, formed following Dow Chemical Co.’s 2017 merger with DuPont Co., is striking while its chief rival is vulnerable.
Bayer’s weedkiller business, with 2018 sales of $5 billion, is contesting lawsuits claiming Roundup causes cancer. Bayer argues scientific studies prove Roundup’s safety, a position backed by regulators such as the U.S. Environmental Protection Agency. Though some farmers have filed cancer lawsuits against Bayer, most remain confident in the spray’s safety and continue to use it.
Corteva aims to exploit another concern around its rival: Bayer’s new herbicide for Roundup-resistant weeds, XtendiMax, has drawn complaints for damaging neighboring crops because its active ingredient is susceptible to evaporating off plants, drifting on wind and shriveling other crops. Bayer says its formulation of the herbicide is less prone to drifting than older versions and that complaints have declined as the company has trained farmers to spray safely.
Corteva is dispatching representatives like Mr. Puck—along with a network of seed sellers, agronomists and others—to sow doubt about Bayer’s newer spray among farmers and agricultural retailers and win them over to Corteva’s weedkiller.
The battle is on two fronts: weedkillers and seeds. For seed suppliers, it is a chance to loosen Bayer’s grip on lucrative crop-gene licensing. Seed developers insert genes that let crops resist specific herbicides—creating, for example “Roundup Ready” seeds—and other seed companies must pay to license the genes that provide that resistance.
An estimated 85% to 90% of soybean seeds sold in the U.S. contain Bayer’s Roundup-tolerant genes, agricultural-industry officials estimate. Rivals including Corteva pay Bayer hundreds of millions of dollars a year to license those genes for their own seeds, analysts estimate.
For consumers, the weedkiller war has implications because herbicide-resistant weeds require farmers to spend more to keep fields clean, adding expenses that can push up food costs. Hard-to-kill weeds also threaten parks and wilderness areas.
Corteva and Bayer are pitching families of products—weedkillers, along with the seeds and genetics that survive them—under the brand names Enlist and Xtend, which includes the XtendiMax spray. About 50 million U.S. acres last year were planted with Bayer-developed soybean seeds resistant to XtendiMax, the company estimated—about 65% of U.S. soybean acreage. Corteva sold a relatively small quantity of Enlist-resistant soybeans after receiving regulatory approvals earlier last year.
By next summer, predicted Corteva Chief Executive James Collins, one in 10 U.S. soybean fields will be planted with varieties tolerant of its Enlist weedkiller. “Nothing would make me happier than to be aggressive,” he said.
Brett Begemann, chief operating officer for Bayer’s agricultural business, said farmers and crop sprayers are getting better at keeping XtendiMax under control and that Bayer’s seeds produce superior soybeans. “We’re never afraid of competition,” he said, “or farmers having a choice.”
The World Health Organization’s International Agency for Research on Cancer, which classified Roundup’s active ingredient as a probable carcinogen in 2015—Bayer has contested the classification—doesn’t see the same risk in the new weedkillers. In 2015, it classified so-called 2,4-D, Enlist’s active ingredient, as “possibly carcinogenic to humans,” one step below the risk it assigned to Roundup’s active ingredient, glyphosate. The EPA says 2,4-D has low toxicity for humans and isn’t a cancer risk.
The WHO agency hasn’t evaluated the cancer potential of XtendiMax’s active ingredient, dicamba. While some studies have linked dicamba exposure to non-Hodgkin lymphoma and birth defects, the EPA doesn’t consider dicamba likely to cause cancer in humans and hasn’t found evidence of chronic health problems from its use.
Roundup’s Reign
Roundup is ubiquitous thanks to its ability to wipe out dozens of weed species and to the debut of crops genetically engineered to survive the weedkiller. Inserting those genes into corn, soybean, cotton and other crops allowed companies to breed Roundup Ready plants that could survive being sprayed with Roundup while plants around them died.
Corteva’s top seed brand, Pioneer, helped spread Roundup Ready crops after it gave the new technology a stamp of approval among farmers in the 1990s by licensing biotech genes from Monsanto. The relationship soured as both companies expanded and launched competing technologies, even as licensing deals kept them mutually reliant.
On U.S. soybean fields, Roundup and other glyphosate-based weedkillers rose from 15% of farmers’ herbicide use in 1996 to 89% in 2006, according to U.S. Agriculture Department data. By then, about two-thirds of soybean fields were being sprayed solely with glyphosate-based herbicides.
Roundup’s power faded as weeds evolved. By 2002, Roundup-resistant weeds were identified in Missouri, Tennessee and some other states, according to the International Survey of Herbicide Resistant Weeds. Six years later, resistant weeds were popping up across the Midwest. In 2020, about 70% of U.S. soybean fields will harbor Roundup-resistant weeds, estimates pesticide and seed maker Syngenta AG.
Farmer Lynnet Talcott for years has fought Roundup-resistant marestail and waterhemp weeds in her family’s eastern Nebraska fields. Extra herbicides required to kill them increased expenses, but she was afraid to try Bayer’s XtendiMax or other dicamba-based weedkillers after nearby spraying damaged her soybeans, she said.
“Your liability you’re looking at is a major issue,” she told attendees in the Corteva tent at the Farm Progress Show, where she joined other farmers on a panel discussing Enlist. Corteva covered her travel and lodging for the event.
She and the other farmers described how the Corteva spray killed weeds but didn’t harm nearby crops and wildflower patches. “Peace of mind,” Corteva’s Mr. Puck told the audience. “Such an important benefit.”
Studies and field work by university agricultural researchers in Arkansas, Missouri, Tennessee and North Dakota have found 2,4-D, the ingredient in Corteva’s Enlist, to be less prone to evaporation than dicamba, the ingredient in Bayer’s XtendiMax.
Bayer has said its XtendiMax version of the herbicide holds closer to where it is applied, that most crop damage has arisen from farmers not following spraying instructions and that XtendiMax doesn’t drift when applied in the right conditions and with the correct equipment. Ty Witten, Bayer’s director of North American crop-protection strategy, said complaints last year declined even as XtendiMax-tolerant soybean acres expanded, showing farmers were improving their control of the herbicide.
Weedkiller Fistfight
Bayer’s herbicide has divided farmers in some farm states since it began selling the Xtend herbicide-and-biotech-seed combination in 2017. There have been fistfights and even a murder over alleged crop damage, according to Arkansas law-enforcement officials and farmers. State and federal regulators have placed restrictions on how it can be sprayed.
Farmers fear weeds more, and dicamba has proven effective against weeds that can spread rapidly and choke out crops. Bayer’s biotech soybeans secured final regulatory approvals in 2016, getting a jump that enabled the new seeds to capture a majority of U.S. soybean fields.
In The Weeds
As weeds evolve to survive glyphosate, the active ingredient in Bayer’s Roundup herbicide, farmers are supplementing it with Bayer’s XtendiMax, based on dicamba, and Corteva’s Enlist, based on 2,4-D.
Corteva’s rival soybean products were held up for years by a regulatory review in China, the biggest soybean importer, over whether to approve their importation. China granted approval in January 2019, and Corteva is racing to catch up, growing more Enlist soybeans in its seed-production fields in Argentina, Brazil and Chile.
To match Bayer’s success, Corteva aims to also license out its Enlist-tolerant crop genes to other seed companies, which pay fees to insert those genes into their own soybean varieties. Corteva estimates 120 seed companies, including Syngenta, have licensed Enlist genes. Corteva could benefit from farmers needing to spray those crops with Corteva’s related weedkiller. Syngenta also licenses Bayer’s Xtend genes.
That means persuading local farm suppliers like Nathaniel Muzzy, a Thief River Falls, Minn., seed and pesticide dealer who last year began offering Corteva’s Enlist products alongside Bayer’s Xtend line. He said Roundup-resistant kochia and ragweed arrived in northern Minnesota around four years ago.
Bayer’s XtendiMax works, he said, but farmers worry about damaging neighboring fields, and local sales have been slow. Farmers, he said, have been desperate for a solution.
When Corteva announced on Jan. 17, 2019, its planned launch of Enlist-tolerant soybeans, Mr. Muzzy said farmers began asking him about the products. He quickly switched about 40% of his soybean-seed orders to Corteva’s products and soon sold out. “People don’t want to spray and go to bed,” he said, “and hope it doesn’t move and two weeks later, their neighbor’s crop is fried.”
Bayer over the past two years has hosted XtendiMax training sessions for farmers and crop sprayers across the Midwest to reduce damaged fields and mitigate complaints. It said it has given away over one million specialized nozzles that can produce herbicide droplets that better stick to plants.
Last year, the 19 biggest soybean-producing states recorded 1,544 dicamba-damage complaints, versus 1,604 in 2018, according to state agriculture officials. In 2016, the number was 257. Bayer is developing a new XtendiMax version it says will better remain where sprayed.
Defensive planting
Terry Fuller, who sells Bayer and Corteva products in Poplar Grove, Ark., said farmers are interested in Corteva’s spray. But, he said, dicamba’s proven weedkilling ability means many Arkansas farmers will keep planting Bayer’s XtendiMax-tolerant soybeans. Some, he said, will plant them to ensure their crops aren’t damaged by an XtendiMax-using neighbor.
“I had a friend tell me,” he said, “ ‘You either plant Xtend or hate your neighbor.’ ”
Corteva is also a big customer of its big rival—and would like to change that. DuPont, Corteva’s predecessor, in the mid-2000s developed soybeans to resist Roundup and another herbicide as a solution to Roundup-tolerant weeds. Monsanto sued DuPont in 2009, saying DuPont’s seeds illegally incorporated Monsanto-patented genes. DuPont filed a countersuit accusing Monsanto of unfair business practices.
They called a truce in 2013 after Monsanto prevailed in court. DuPont agreed to a 10-year, $1.75 billion licensing deal to use Monsanto-developed crop genes. That deal made Corteva a major licenser of Bayer’s XtendiMax-resistant soybean genes. About 65% of Corteva’s Pioneer soybean seeds use XtendiMax-tolerant genes, Corteva officials said.
By early 2020, Corteva’s Mr. Collins said, Corteva will know how fast it can increase sales of its Enlist herbicide and seeds—and when it might scale back business with Bayer. “We write some big royalty checks,” he said, “and would love to back ourselves out of those as fast as we can.”
One August afternoon, Corteva salesman Casey Mattke courted farmers and agricultural retailers in a field near Whitewater, Wis. In muddy boots, he led them past soybeans sprayed the previous week with Enlist and then past rows of green pumpkin vines—sensitive to herbicides—undamaged nearby. It is a presentation he and colleagues gave over the summer at demonstration fields across the Midwest.
Mr. Mattke pointed to a field across the road. “What if this was an Xtend field?” he asked. Between the afternoon’s moderate wind and the government-mandated buffer to protect neighboring fields, he said, spraying the Bayer product would be prohibited.
With Corteva’s weedkiller, he said, “you could spray today.”
Updated: 2-13-2020
Bayer Touts Breakthrough in Herbicide Research
Chemical giant says new compound is effective against Roundup-resistant weeds.
Bayer AG said its scientists discovered the building block for a new herbicide, at a time when the company’s existing weedkillers face legal and regulatory challenges.
The German seed-and-pesticide supplier said it identified a chemical molecule that has proved effective against grasses that have evolved to survive other herbicides, including Bayer’s Roundup, the world’s top-selling weedkiller. Roundup has for years been losing effectiveness against a rising number of weed species and is the focus of tens of thousands of lawsuits alleging a cancer link, which Bayer is contesting.
Bayer and its rivals are racing to identify and develop new chemical weedkillers after a roughly-three-decade drought in new herbicide discoveries. A decade might pass before Bayer could market its discovery as a new herbicide, Bayer said, since it would require development and regulatory reviews. Bayer said the discovery nevertheless marks a step toward a valuable new agricultural tool, after chemical makers and farmers for decades have relied on existing chemical compounds.
“It’s not like anything else that exists in herbicides,” said Dr. Bob Reiter, Bayer’s head of agricultural research and development.
Bayer’s $5 billion herbicide business is ensnared in tens of thousands of lawsuits filed by plaintiffs alleging that Roundup caused their cancer. The company is contesting those claims, pointing to safety endorsements by regulatory bodies such as the U.S. Environmental Protection Agency, which last month again said Roundup was safe. The company lost the first three cases to go to trial, however, and some countries, including Germany, have moved to ban the herbicide.
Rising research costs and lengthier regulatory reviews played into the lull in developing new herbicides, as did Roundup’s rise to ubiquity in the 1990s. The introduction of crops genetically engineered to survive Roundup and other weedkillers based on the active ingredient glyphosate, made it U.S. farmers’ default spray and led to a lapse in new herbicide research, according to a 2019 paper by Colorado State University Prof. Franck Dayan.
As Roundup’s use soared, weeds evolved to survive it. Swiss pesticide maker Syngenta estimates that glyphosate-resistant weeds will afflict 70% of U.S. soybean fields this year.
Bayer and Corteva Inc., another top seed and chemical supplier, are marketing new herbicide-and-seed combinations to beat back such problem weeds.
Those sprays are based on chemical compounds discovered decades ago, and agricultural researchers have said resistant weeds could overpower those herbicides too. Bayer’s Xtendimax spray, based on the chemical dicamba and approved for sale in 2016, has been blamed for drifting across fields and damaging millions of acres of crops. The company has attributed the majority of complaints to farmers’ own spraying errors.
BASF is preparing to launch this year in Australia what the company said is a new chemical for killing ryegrass. FMC Corp. in 2019 said that in several years it plans to launch a new herbicide for rice farmers battling herbicide-resistant weeds.
Bayer’s newly identified compound is effective against ryegrass and other grasses threatening corn and soybean fields, Dr. Reiter said. Company researchers are working to engineer biotech seeds for such crops as corn, soybeans and cotton that could resist the spray. The potential to develop new sprays and biotech seeds simultaneously was a major factor in Bayer’s $63 billion acquisition of Monsanto in 2018.
While the new herbicide appears to be effective against grasses that can survive Roundup, Dr. Reiter said it wouldn’t replace Roundup’s capacity to kill dozens of weed species.
Updated: 2-15-2020
Bayer, BASF Ordered to Pay $265 Million in Weedkiller Crop-Damage Suit
Ruling in dicamba herbicide case comes as Bayer fights separate litigation over Roundup spray.
A jury ruled against Bayer and BASF in a crop-damage case, awarding $265 million to a Missouri peach farmer who claimed the companies encouraged farmers to irresponsibly spray a hard-to-control weedkiller.
Peach farmer Bill Bader sued the pesticide-and-seed makers after he said thousands of his fruit trees sustained damage in 2015 and 2016. The damage, he alleged, was caused by a herbicide called dicamba that drifted from neighboring cotton fields, planted with dicamba-resistant biotech seeds developed by Bayer and BASF.
The legal battle over dicamba deepens Bayer’s legal troubles over its top-selling herbicides. The Bader Farms Inc. case was the first involving dicamba to go to trial and a bellwether for about 35 similar lawsuits filed by farmers seeking damages in Illinois, Arkansas, Missouri and other states.
The ruling in a federal court in Missouri on Saturday comes as the Environmental Protection Agency is set to decide by the end of this year whether farmers will continue to be allowed to spray the companies’ dicamba-based herbicides on crops.
Bayer separately is fighting more than 42,000 plaintiffs claiming its biggest-selling herbicide, Roundup, caused their cancer. The company has argued that decades of scientific research, as well as reviews by regulators including the EPA, prove Roundup’s safety. Bayer has lost the first three cases to go to trial, and is appealing those rulings.
A Bayer spokesman said that the company planned to appeal the Bader Farms verdict, and that dicamba remains a valuable tool for farmers that can be used safely. A BASF spokeswoman said the company would consider its legal options and keep working with farmers to mitigate dicamba-related crop damage.
“We feel that justice was served,” said Bev Randles, an attorney with Randles & Splittgerber LLP, who represented Mr. Bader.
Don Downing, an attorney with law firm Gray, Ritter & Graham P.C. who is representing other plaintiffs suing the companies over dicamba damage, said the verdict will encourage other farmers to file lawsuits.
The judgment awarded to Mr. Bader represented $15 million in damages to compensate Mr. Bader for losses sustained from dicamba damage and $250 million in punitive damages.
BASF and Monsanto Co., the biotech seed giant Bayer acquired for $63 billion in 2018, developed their dicamba-based herbicides and related biotech seeds to help make up for Roundup’s waning power to kill some weeds.
Monsanto’s introduction in the 1990s of biotech crops engineered to withstand Roundup made it the default weed spray for Midwestern farmers, but also led weeds to evolve to survive it. That forced farmers to eventually supplement Roundup with other, more potent herbicides.
Dicamba has been shown in university field trials and farm research to be prone to evaporating off fields where it is sprayed and drifting, posing a threat to nearby crops, trees and residential gardens. Bayer and BASF have said their new formulations of the herbicide, called XtendiMax and Engenia, hold better to where they are sprayed.
The companies began marketing dicamba-resistant seeds in 2015, before the EPA had approved the companies’ related herbicides, according to Mr. Bader’s complaint.
Mr. Bader alleged that by selling those seeds before regulators approved the new dicamba herbicides, Bayer and BASF knowingly gave farmers an incentive to illegally spray the dicamba-resistant crops with older forms of dicamba, which more easily evaporate and drift.
“Monsanto took numerous steps to mitigate, and warn about, potential risks associated with its products,” a Bayer spokesman said.
Mr. Bader runs what he estimated in court documents to be Missouri’s biggest peach farm, producing some 5 million pounds of the fruit annually. Damage to his trees from nearby spraying cost him hundreds of thousands of dollars in lost sales, and lab tests by state agricultural officials confirmed dicamba symptoms, he alleged.
Bayer and BASF contested those claims, arguing that crop disease, severe weather and other herbicides caused the damage, in addition to Mr. Bader’s own mismanagement. Bayer officials have attributed most dicamba damage complaints in recent years to farmers’ own spraying errors.
Farmers and weed scientists over the past four years have blamed XtendiMax and other dicamba-based herbicides for damaging millions of acres of soybeans and other crops.
Steve Smith, senior director of agriculture for Indiana tomato company Red Gold Inc., for years has sought tighter dicamba restrictions and testified on Mr. Bader’s behalf in the Missouri trial, saying that Bayer and BASF ignored the risks of their dicamba-based crop systems.
“I hope that the regulatory agencies will take a look at what was proved in this case and react,” Mr. Smith said.
Despite some farmers’ complaints, the EPA in 2018 reapproved Bayer and BASF’s dicamba herbicides for a two-year period, while tightening rules for how they can be sprayed.
Updated: 2-18-2020
U.S. Peach Grower Awarded $265 Million From Bayer, BASF In Weedkiller Lawsuit
A Missouri jury’s $265 million award to peach grower Bill Bader in his lawsuit against herbicide providers Bayer and BASF has raised the stakes for the two companies as at least 140 similar cases head to U.S. courts later this year.
A jury in U.S. District Court in Cape Girardeau, Missouri, handed Bader, the state’s largest peach farmer, $15 million in actual and $250 million in punitive damages. He sued the companies saying his 1,000-acre orchard was irreparably harmed by herbicide that they produce, which drifted onto its trees from nearby farms.
The three-week trial was the first case in the United States to rule on the use of dicamba-based herbicides alleged to have damaged tens of thousands of acres of U.S. cropland. The herbicide can become a vapor and drift for miles when used in certain weather, farmers have claimed.
Bayer said it was “disappointed with the jury’s verdict,” and plans to appeal. BASF also said it was “surprised and disappointed” by the decision and plans to appeal. Both companies said their dicamba-based herbicides are safe when used as directed.
Bayer faces separate multi-billion-dollar litigation over the Roundup weedkiller made by Monsanto, the U.S. firm it took over for $63 billion in 2018. Monsanto made Roundup and dicamba, and Bayer is being sued over both products.
“We believe the evidence presented at trial demonstrated that Monsanto’s products were not responsible for the losses,” Bayer said.
Bayer and BASF face other dicamba lawsuits that could begin late his year before the same judge in Missouri, said attorney Billy Randles, whose firm represented Bader and also represents dozens of others with similar claims.
“These are all the same” allegations, said Randles. “They claim negligent design, failure to warn and all allege a joint venture” between Bayer and BASF. The jury found the two equally liable for the damages.
Bader Farms, in southern Missouri near the Arkansas border, said it lost many trees when the herbicide containing dicamba was used on nearby soybean and cotton farms and drifted onto its property.
The farm said repeated dicamba exposure beginning in 2015 killed or weakened the fruit trees.
The U.S. Environmental Protection Agency imposed restrictions on the use of dicamba in November 2018 over concerns about potential damage to nearby crops.
“As long as dicamba is around, it’s not viable,” Randles said of the orchard.
Updated: 2-26-2020
Bayer Chairman Steps Down in Midst of Roundup Legal Battle
Werner Wenning is set to be replaced by Norbert Winkeljohann as the company attempts to resolve thousands of lawsuits.
Bayer AG, in the midst of a major legal battle over its Roundup herbicide, said Chairman Werner Wenning would step down earlier than planned and be replaced by a former PricewaterhouseCoopers executive and relative newcomer to the German company.
Bayer said Mr. Wenning, 73 years old, would step down at the end of this year’s annual shareholders meeting on April 28 to be replaced by Norbert Winkeljohann, who joined the company’s board in 2018. Shareholders will be asked to vote on a new board member, Horst Baier, a former finance chief at travel company TUI AG TUI1 -3.04% .
Mr. Wenning said he had intended to retire last year but was asked by the group’s supervisory board to stay given “the company’s situation at the time,” which he accepted.
Mr. Wenning is a former Bayer chief executive, a mentor of CEO Werner Baumann and a champion of the 2018 acquisition of U.S. agricultural giant Monsanto that tipped Bayer into one of its worst crises in its 156-year history. He had been chairman since 2012 and his mandate was originally set to run until 2022.
The replacement of a company veteran of over 50 years comes as the chemicals and pharmaceutical company is under pressure to resolve a high-stakes legal battle over the world’s most popular weedkiller, which thousands of Americans allege causes cancer.
Bayer inherited the legal fight when it bought Monsanto in a $63 billion acquisition that Mr. Wenning backed and even helped negotiate together with Mr. Baumann.
Mr. Wenning has also played a crucial role in navigating Bayer through the legal standoff with more than 42,000 plaintiffs. He is a member of the supervisory board’s glyphosate litigation committee and almost all other board committees. People familiar with Bayer have always described him as being very involved in all aspects of the business.
Bayer lost more than a third of its market value at the peak of the crisis last year after the company lost three California jury trials and the number of plaintiffs rose sharply as a consequence. Bayer argues Roundup and its active ingredient glyphosate are safe when used as directed and appealed all three verdicts. Its share price has since recovered some of its losses and were trading broadly flat Wednesday.
Mr. Wenning said now was a good time for him to retire as the company was making progress on all its various front lines—from managing the legal battle to integrating Monsanto and restructuring its other businesses.
“We have made and continue to make progress in handling the legal issues in the U.S. That’s why now is a good time to hand over to my successor,” Mr. Wenning said in a statement.
Bayer is currently in settlement talks with U.S. plaintiff attorneys and investors expect the company to soon find a solution that can put to rest an issue that continues to worry investors and weigh on its share price.
Messrs. Wenning and Mr. Baumann—internally often referred to as “big and small Werner”—have both come under fire for their decision to purchase Monsanto and the troubles that triggered.
While Mr. Baumann for the first time in German corporate history lost a shareholder confidence vote last year, Mr. Wenning was also rebuked as some 34% of shareholders refused to ratify the supervisory board’s actions, a historically high number. Both men have defended the deal.
A Bayer spokesman said there were no other reasons behind Mr. Wenning’s departure.
For Janne Werning, an expert on environmental, social and governance issues at asset manager Bayer Investor Union Investment, the move to replace Mr. Wenning was right, albeit surprising.
“Mr. Wenning was closely tied to the current difficult situation and what is decisive now is to put in place an independent oversight of Bayer’s strategic development,” Mr. Werning said in an email. He added, though, that he would have hoped for a chairman with more expertise of Bayer’s industry, something the new board member, who spent most of his career in the travel industry, didn’t bring along either.
By naming Mr. Winkeljohann as chairman, Bayer is breaking with a longstanding company tradition of having senior managers occupy the role of chairman. Mr. Wenning was widely respected at the company for steering it through an earlier legal battle in the U.S. over its now withdrawn cholesterol-lowering drug Baycol.
Mr. Winkeljohann, 62, joined Bayer’s supervisory board in May 2018, two years after the company made its first takeover offer for Monsanto. A trained accountant, Mr. Winkeljohann was Europe CEO of PricewaterhouseCoopers until 2018.
Oliver Zühlke, vice chairman of the supervisory board, said since joining Bayer Mr. Winkeljohann had worked diligently to familiarize himself with the group’s structures and businesses. Mr. Wenning said he was pleased Bayer had chosen in Mr. Winkeljohann a leader who could “guide Bayer into its next chapter as a leading and focused life science company.”
Updated: 6-28-2020
Bayer to Pay Up to $10.9 Billion to Settle Lawsuits Over Roundup Weedkiller
Agreement, however, leaves open the potential of more lawsuits being filed against the company in the future.
Bayer AG said Wednesday it would pay up to $10.9 billion to settle tens of thousands of lawsuits with U.S. plaintiffs alleging the company’s Roundup herbicide causes cancer, a milestone in the German company’s legal battle that has been weighing down its share price for nearly two years.
Investors have long been waiting for a settlement to bring clarity over how much the litigation will cost Bayer, following its 2018 purchase of U.S. agricultural giant Monsanto Co.
The deal brought the company thousands of Roundup-related lawsuits. Three jury-trial losses tanked shares and sparked a revolt among shareholders angry at Bayer’s management for plunging the company into one of the worst crises in its history with the $63 billion Monsanto acquisition.
Wednesday’s deal, which follows months of heated talks between Bayer and plaintiffs’ attorneys, doesn’t change anything in Bayer’s view that glyphosate, the active ingredient in Roundup, is safe and doesn’t cause cancer.
Bayer didn’t admit to any wrongdoing as part of the settlement and continued to defend its decision to purchase Monsanto. The company will continue to sell Roundup.
The agreement, however, leaves open the potential of more lawsuits being filed against the company in the future, an issue investors have been particularly concerned about.
As part of the deal, Bayer said it has set aside between $8.8 billion and $9.6 billion to settle claims brought by lawyers representing some 95,000 plaintiffs, as well as some 30,000 more claims that haven’t yet agreed to the settlement. The company said it would set aside another $1.25 billion to work toward a resolution of future claims, including funding a panel to evaluate whether the product causes cancer. The findings from that panel are geared to help shape the outcome of litigation going forward.
Separately, Bayer largely resolved two other legacy Monsanto cases Wednesday, involving a toxic banned chemical and a different weedkiller.
The series of settlements highlight how Bayer, the 157 year-old inventor of aspirin, is trying to move past the lingering problems triggered by the Monsanto deal.
“The litigation and the burden and some of the negative reputational impacts that come with this, we can leave those now behind us,” Werner Baumann, Bayer’s chief executive, said in an interview.
That Bayer’s Roundup products will continue to be sold, without a cancer warning label, leaves the company exposed to future lawsuits. It creates a unique legal conundrum for the company over how best to guard itself against potential future litigation.
To attempt to resolve the key question of whether glyphosate is a carcinogen, Bayer is seeking court permission to create a class of future plaintiffs and fund a five-member scientific panel that will spend several years evaluating the link between Roundup and cancer.
The panel will report its findings to U.S. District Judge Vince Chhabria in San Francisco. A conclusion that the product doesn’t cause cancer will essentially shut down any future cases. If the panel does find a link between Roundup and cancer, Bayer would have to fight plaintiff-by-plaintiff to prove the individuals’ cancer wasn’t caused by the product, a point that unsettled some investors.
Mr. Baumann said on a conference call Wednesday that while “it’s not 100% certain,” Bayer is confident the panel will back its view that glyphosate isn’t carcinogenic. The company has previously said that hundreds of regulatory agencies, including the Environmental Protection Agency, and scientists have deemed the product safe.
“We need to take the decision about carcinogenicity of the product out of the hands of juries,” said Mr. Baumann. The scientists on the panel, he said, would be selected both by Bayer and plaintiffs’ lawyers, to come to a “fair and solid” conclusion.
The creation of such a court-overseen science panel is rare, said University of Georgia law professor Elizabeth Burch, and raises questions over whether future plaintiffs who may not be sick yet are getting a fair shot at pressing claims that Roundup caused their illnesses.
Markus Manns, portfolio manager at longtime Bayer shareholder Union Investment, said the amount to settle current claims is in the range of what investors expected, but it remains unclear if the sum for future claims would be sufficient. “Over and all it seems, though, that this is the best deal Bayer could get in the current environment,” Mr. Manns said.
John Ramuno, a 72-year-old plaintiff in Southern California who suffers from multiple myeloma after working as a landscaper for 14 years, said he isn’t optimistic the settlement will help him very much.
Mr. Ramuno said his attorney told him he will have to pay 40% of his settlement for attorney fees and at least another $102,000 to Medicare for his medical bills. Mr. Ramuno said he hasn’t heard from his attorney yet about what he will get from the settlement, but he would need to get a roughly $500,000 settlement to pay Medicare and his attorneys and help cover his medical bills and living costs for the remainder of his life.
“It would be foolish to accept a settlement that pays [back] everybody but me,” he said.
Bayer is still negotiating with lawyers representing another roughly 30,000 existing clients who haven’t yet signed on to the deal. Ken Feinberg, the court-appointed mediator, said he is confident those claims will be resolved in the coming few months.
Jim Onder, senior member of the St. Louis-based Onder Law Firm, said he has 24,000 of those outstanding claims and rejected the offer as too low. “Our trial teams will continue holding Bayer accountable in Roundup trials nationwide,” Mr. Onder said.
Bayer said it would continue appealing the first three cases it had lost in jury trials, a chance for it to get favorable court decisions to bolster its stance on Roundup’s safety. A decision in the first appeal is expected later this summer. In another case on appeal, the Trump administration recently backed Bayer’s argument that Roundup is safe.
Bayer moved Wednesday to resolve two other pieces of litigation it inherited in its Monsanto acquisition.
The company will pay around $820 million to U.S. states and local governments that blame a toxic chemical banned decades ago for causing widespread waterway contamination.
The fire-resistant chemical compounds, called polychlorinated biphenyls, were used as a coolant and in a variety of commercial uses for four decades before being banned by U.S. regulators in the late 1970s over health concerns. The local and state governments allege the chemicals contaminate storm water and passively flow into waterways. The chemicals have been found in the tissue of fish, birds and other wildlife.
Bayer also said it would pay up to $400 million to resolve legal challenges and crop-damage claims to another of its herbicides, dicamba, which the company has marketed to kill weeds that have evolved to resist Roundup. Farmers and agricultural experts have blamed dicamba-based sprays for drifting on winds and damaging millions of acres of soybeans, peaches and other crops.
The settlements come as investors have recently turned more positive on Bayer. After investors scolded management at last year’s shareholder meeting, when Mr. Baumann became the first German CEO to lose a routine shareholder confidence vote, Bayer responded to investor criticism. The company strengthened oversight of its legal defense, hired a new agriculture expert to its supervisory board and launched a new sustainability strategy, winning back shareholder approval at this year’s meeting in April.
Bayer’s shares recently pared back some of the dramatic losses incurred by the first three jury losses, but as of late Wednesday, they were still down some 25% from before the first verdict in August 2018 as investors awaited clarity on the litigation.
“The settlement is an expensive liberation for Bayer that massively reduces the legal risks and with that the uncertainties on the capital market,” said Ingo Speich, head of sustainability & corporate governance at Deka Investment, another Bayer shareholder. “The reputational damage, however, won’t be repaired with that.”
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