Elizabeth Cabraser, Lieff, Cabraser, Heimann & Bernstein. Photo: Jason Doiy/ALM

One of the more controversial and critical parts of Bayer's $10 billion-plus settlements of Roundup cases last week is a separate deal to resolve future claims that—because it comes in a class action—faces judicial scrutiny and potential objections that may unravel the agreement.

The class action settlement, which includes a $1.1 billion fund, is a key part of Bayer's strategy to cap its subsidiary Monsanto's Roundup litigation while keeping its product on store shelves.

But, unlike the settlements that resolved 75% of the estimated 125,000 claims over Roundup, the class action settlement is subject to the Federal Rule 23 of Civil Procedure as well as the class action guidelines in the U.S. District Court for the Northern District of California, where Judge Vince Chhabria has to approve the agreement over any objections.

And there could be objections.

Some lawyers already have criticized the deal's creation of a science panel that would give the final say on whether Roundup causes non-Hodgkin lymphoma, ending the debate in the courts. The settlement also includes $150 million in attorney fees to three firms that filed the class action last year.

Chhabria has set a July 23 hearing on preliminary approval.

In a conference call last week, Bill Dodero, Bayer's global head of litigation, said he was "confident" that the science panel in the class action settlement would find no link between Roundup and non-Hodgkin lymphoma.

"We want the discussion about science," he said. "And that's what this whole settlement is meant to do: return the conversation to science. We think that's where the parties' debate is best served."

The settlement, which resolves the claims of individuals who haven't even sued yet, gives finality to Bayer, which has stood by the safety of Roundup and has no plans to withdraw it from the market.

"This is absolutely Bayer's best attempt at trying to buy some sort of a peace here and bring this at least as much closure as you can get with a product still on the market," said Amy Alderfer, of Cozen O'Connor, who is following the Roundup litigation. "If you're going to continue to sell this product, and continue to sell it without a warning on it, I think it's actually very interesting and creative to try to do this—to box this in in some way and put these parameters on this."

Under the settlement, a notice program "unprecedented in scope and saturation," according to Elizabeth Cabraser, of Lieff Cabraser Heimann & Bernstein, lead plaintiffs counsel for the class action settlement, would reach out to a potential class of up to 125,000 in the United States and Mexico, most of whom are agricultural workers who regularly use Roundup. The class includes those diagnosed with cancer and those who have not.

The settlement's fund includes between $100 million and $250 million toward diagnostic testing to what Cabraser referred to as a "medically underserved population" and at least $650 million for financial assistance grants ranging from a few thousand dollars to $35,000. It also includes $25 million to $75 million in research funds.

"The class settlement for this group is an effort to provide a practical alternative in real time and to make Monsanto pay for it," said Cabraser. "It's not a compensatory damages fund. It's a fund that provides diagnostic services, needs-based payments, while class members are waiting for the science panel to make determinations."

But the most controversial element is the science panel, made up of five experts selected by consent by both sides, which would determine general causation for all future lawsuits, rather than have judges and juries decide whether glyphosate causes non-Hodgkin lymphoma. After that process, estimated to take four years, Bayer would have a binding decision that could halt future lawsuits.

"You're hoping, more than hoping, betting on the fact that this science panel will at the end of the day find that glyphosate doesn't cause cancer," said Alderfer.

If the science panel finds a link, however, class members could file their lawsuit but only for compensatory damages, not for punitive damages or medical monitoring.

Not everyone is on board with the idea. Robin Greenwald, of Weitz & Luxenberg, co-lead counsel in the multidistrict litigation who settled her firm's cases last week, said she had "serious concerns about that proposed class."

"Seven courts found the science sufficiently reliable based on methodologically sound methods of evaluation to be admissible in a court to determine whether general causation is met," she said, including those that oversaw trials ending in three verdicts totaling nearly $2.4 billion (Bayer has appealed those awards).

Potential objections are important to the survival of the deal, which includes a provision in which Bayer would back out if a certain percentage of class members, submitted under seal, opt out.

Cabraser acknowledged the criticism but noted that the findings of other judges were not binding, and experts are expensive.

Another provision of the settlement provides $150 million in attorney fees to lawyers including Cabraser and others at her San Francisco firm, as well as William Audet of San Francisco's Audet & Partners and James Dugan, of The Dugan Law Firm in New Orleans.

The firms have not yet filed their motion for fees, which are in addition to, and not part of, the $1.1 billion settlement fund. But Cabraser said the fees, held in an escrow account, would include work needed over the next four years and paid over that period.

"We negotiated that with Monsanto after we had reached agreement on the essential terms of the class on settlement, and we will explain to the court the work that will be required to be done over the life of the program," she said.