Bayer’s failure to resolve ongoing lawsuits over Monsanto’s Roundup herbicide, now totaling 3,787, combined with coronavirus-driven demand reduction and a devaluation of the Brazilian real, caused the ag giant to declare a loss of $3 billion in the third quarter of 2020. Bayer has massive operations in Brazil, the world’s largest soybean producer.

Bayer’s attempt to resolve legacy legal issues over the herbicide Roundup is receding into the distance as the company failed to meet a deadline to settle outstanding lawsuits. The deadline was set by U.S. District Judge Vince Chhabria in San Francisco, under whose supervisions Bayer tried to get plaintiffs to accept a roughly $10 billion settlement.

Bayer disclosed in a court filing that 1,861 out of a total of 3,787 outstanding federal cases aren’t covered by the agreement with plaintiff attorneys. Chhabria said he would resume federal trials after halting them to allow for settlement negotiations. The settlement proposal wouldn’t have resolved cases in state court. The company’s lawyers appeared before Chhabria on Nov. 9.

In 2018 and 2019, Bayer lost three Roundup suits with average initial awards of $50 million. Roundup, based on glyphosate, is a signature product of Monsanto, which Bayer bought for $63 billion in 2018. In July, Bayer lost an appeal in the California Supreme Court when it refused to overturn a verdict in favor of DeWayne Johnson, a groundskeeper who blamed his non-Hodgkins lymphoma on Roundup. His initial award was $40 million in compensatory damages plus $250 million in punitive damages, later reduced by a judge to $78.5 million. The ruling was followed by a wave of lawsuits. Johnson’s case, and some other ongoing cases, would not have been covered by the proposed $10 billion settlement. As part of the settlement, Bayer sought to submit a statement by scientific experts on whether or not glyphosate causes cancer that would bind all parties.

The federal case is In re Roundup Products Liability Litigation, 16-md-02741, U.S. District Court, Northern District of California (San Francisco).

David Murray can be reached at journal@hpj.com.

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