ROUND UP SETTLEMENT REDUX - ARE THEY FOR REAL THIS TIME?

BACKGROUND

On June 24, 2020, Bayer announced agreements to resolve major legacy Monsanto litigation. The press release, issued primarily for the benefit of nervous Bayer investors, implied that Bayer had reached settlement to resolve the majority of Plaintiff cases. Bayer claimed that the settlement would range between $10.1 billion to S10.9 billion U.S.

Although Mass Tort Nexus (MTN) had serious doubts that Bayer would accomplish substantial resolution of the litigation at a cost of $10.1 billion to S10.9 billion U.S., we waited several months before publishing our article titled, Dear Bayer, the number is $22 Billion.

It appears that Bayer has given up any hope of a global settlement of Plaintiff cases, at significantly subpar settlement values.
The latest information received from MTN sources leads us to believe that Bayer is now attempting to settle for more reasonable values, with firms considered to be a “litigation threat”, while offering firms they do not consider to be a trial threat, far lower average case values.

WILL THIS NEW STRATEGY WORK?

It is probable that Bayer will reach settlement with firms that have already scored big trial wins, by offering reasonable average case values. As is generally the case, settlement agreements with these firms are likely to include “gentlemen’s agreements”, precluding these firms bringing new cases post settlement of their existing dockets.

It is also probable that Bayer will succeed in reaching settlement, at significantly subpar values, with a number of those firms Bayer does not consider a litigation or trial threat.

The wild card for Bayer in this strategy arises from any assumption that they have correctly identified all firms that might pose serious litigation/trial threat. Even if a given firm or attorney has never brought down a jury award in excess of $100 million or $1 billion, does not mean they are incapable of such an achievement. It is important to note, among those firms that are members of this very small club, prior to their having acquired their first earth shattering (and stock price impacting) jury award, they might have been included in the group Bayer does not consider to be a threat. There is a first time for everything.

Additionally, it is never wise to insult (directly or indirectly) any Plaintiff’s attorney if you are trying to reach settlement. Many Plaintiffs’ attorneys would consider being thought of as “no threat” at trial, an insult to be addressed by disproving the assumption.

Bayer stockholders have long ago lost patience with the company’s handling of the Round Up litigation. Bayer stock would not likely fair well if another $100 million or $1 billion dollar verdict was handed down.

Twenty-nine years ago, Mark Lanier was just another attorney, (as far as anyone knew) fast forward to 2021, and over $20 billion(ish) in jury verdicts later, Mark Lanier, is now “that Mark Lanier” . Twenty-nine years ago Bayer would not likely have considered Mark a serious threat and would have likely paid the price for their underestimation.

Jim Onder was just a down to earth unassuming fellow raised in the mid-west, and although Jim is still a down to earth unassuming fellow however, Jim Onder is now “that Jim Onder.”

Atticus Finch was not, ‘that Atticus Finch”, until he was.

THE BOTTOM LINE

Bayer plays a risky game, at very high stakes, if they fail to recognize any attorney they do not consider a serious threat, might not be the next Atticus Finch, just waiting to become “that Atticus Finch.”


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