Is There A Securities Law Attorney In The House?

My daughter ran downstairs with blood on her lip and one of her last baby teeth in hand. She enthusiastically suggested ideas of what the tooth fairy should consider giving her as a grand lifetime finale of fairy gifting. Apparently, the least the fairy could do is gift a red Ford F150 pickup truck that we could house for the next five years until she gets her license. 

I started thinking about this tooth. Stanford Children’s Health says:

Teeth start developing in the unborn baby. Good nutrition from the mother during pregnancy is important in tooth development. The mother’s diet should have adequate amounts of calcium, phosphorus, vitamin C, and vitamin D. 

So how does Roundup fall in line with “good nutrition”? I unknowingly chowed down on the gamut of Roundup-laden food when I was pregnant with her, as she grew that very tooth. I blissfully enjoyed pizza, pound cake, and pasta drenched in Roundup from pre-harvest grain desiccation. 

Because I’m me, I took that tooth from under my daughter’s emoji printed pillow, and mailed it off to HRI Labs to check for glyphosate content. They have the ability to check animal bones, so why not teeth?  

I waited several weeks until an email popped up with the result. There it was: glyphosate was found in my daughter’s baby tooth. It was found at a very low level, but nonetheless present. Once again, this is the very tooth that she grew while in my uterus. 

We know that glyphosate can cross the placenta, directly reaching the fetus in utero:

Human embryos during the gestational period are particularly responsive to environmental conditions and laboratory research has shown that glyphosate can affect placental cells, disrupting fetal development, and also that it can cross the placenta directly reaching the fetus in utero (Richard et al., 2005; Benachour et al., 2007; Benachour and Séralini, 2009; Poulsen et al., 2009)

So, not only does it cross into the uterus through the placenta, but it also collects in tissues and becomes a permanent component of our children’s dental biology. My God. Please someone do something. 

The California Dental Association (CDA) won’t be of help – they oddly filed an amicus brief following Lee Johnson’s verdict, claiming that the jurors disregarded both science and the consensus of regulators, falling victim to “emotional manipulation.”

Why the CDA needed to give their two cents on the Johnson verdict is not readily apparent to me, but certainly must be associated with money in some way. 

Until recently, Monsanto partnered with the American Association of Pediatrics (AAP) in its mission to feed children Roundup Ready GMOs. As uncovered in the Monsanto Papers, Monsanto sent funding to the AAP, planning that AAP would “deliver messages…to physicians and key audience (moms/millennials).” The strategic partnership would also “drive technical conclusions as pediatric organizations around the world rely on AAP materials. Advantage – safety for children/infants effectively drives public to conclude safety for adults.” 

Monsanto has so effectively muddied the waters of truth through propaganda, bought science, and misinformation campaigns, that chances are slim that pediatricians or dentists would even believe that weedkillers swim laps in our gestational waters. Or if they did know, would they have confidence to stand up and point it out to their peers, institutions, and government? I would hope so, but given my own experiences with most doctors, I’m not very confident. 

Settlement hearing

What I DO have confidence in is our team of plaintiffs’ attorneys, continuing to demand justice for their clients in the Roundup NHL trials. Today, I tuned in for a hearing on the Federal Multidistrict Litigation (MDL) settlement progress, starring Judge Chhabria and the much famed mediator Ken Feinberg. I was completely Feinberg fangirling since hearing his podcast interview with Michael Lewis in which he discusses how he came to be a professional mediator. 

What I thought was going to be a rather boring check-in meeting rapidly escalated to reveal just how far away from a settlement the parties currently stand. 

These types of Zoom meetings always have me a bit spooked. Even if I am entirely sure that I am not visible nor hearable, the paranoia surrounding “what-if I am both visible and hearable” lingers in my psyche. So I put away the bag tortilla chips, and cover my camera with post-it notes. My husband and I were on an all-school-parent meeting Zoom last week, and he passed me a written note on binder paper asking if we had submitted our son’s health paperwork. I wrote back, “Can they hear us?” and there was a shrug with the intention of “I don’t think so, but do we ever really know….”

In this case, I was thankful that the moderator announced that observers are not seen nor heard, so I pulled back out those chips and added some guac (but kept that post-it on the camera).     

Moderator, Court Recorder, Monsanto Attorney William Hoffman, Mike Miller

Thickly ‘Stached Michael Baum, Mark Burton, Lori Andrus, Monsanto Attorney Brian Stekloff

Jennifer Moore, Aimee Wagstaff, Brent Wisner hanging out in Frasier’s apartment, Robin Greenwald

Ken Feinberg, Perry Weitz, Scruffy-Bearded Judge Chhabria

the short version

Judge Chhabria got some letters from plaintiffs’ counsel, in which they claim that Monsanto is welching on their settlement deal – well, this is juicy!

Ken Feinberg, mediator extraordinaire, explains that some cases are settled, while many are not. 

Chhabria wonders how this could be, given the Bayer press release in June said these cases were nearly all settled and approved. Interestingly, the press release was timed just at the close of their financial Q2. 

Plaintiff attorney Brent Wisner says: “We had a deal. The simple fact is, we are not settled. As of today, they have completely terminated the agreement.” Apparently, plaintiffs’ counsel had signed the agreed-upon term sheet, and Monsanto never countersigned. 

Chhabria, who had agreed to put a pause on litigation to finalize the settlement, realizes that something funky is going on: “I am concerned that Monsanto may be manipulating this litigation process to its advantage somehow…If I leave the stay in place, am I complicit in whatever shenanigans are taking place right now on the Monsanto side…”  You read that right – Judge Chhabria is outright acknowledging some likely “shenanigans.”

In conclusion, if new settlement terms can’t be reached in the next 60 days, litigation will be reopened and trials will likely restart. There will be a check-in in 30 days to monitor progress. 

the long version

Judge Chhabria opens the discussion, noting that he has received several confidential letters from plaintiffs’ counsel, concerned that Monsanto is welching on their settlement deal. He isn’t sure why these letters are confidential, given the significant public interest in the case and settlement. Last month, Chhabria granted a “stay” for 90 days, halting litigation while settlement terms would presumably be finalized. Those letters requested that this stay be lifted so that trials can be resumed in the absence of settlement progress. 

Ken Feinberg is next highlighted in the Zoom yellow speaker square, and explains that the cases have been placed into three different settlement buckets. 

Bucket 1: Close to 32K cases are officially settled, represented by over 50 different law firms, including The Miller Group

Bucket 2: After extensive negotiations, no formal, final settlement has been reached. This bucket will be of Feinberg’s primary focus over the next month. Bucket 2 includes the law firms Baum Hedlund (Brent Wisner) and Andrus Wagstaff (Aimee Wagstaff). 

Bucket 3: These plaintiffs are part of the MDL docket and the lawyers representing those plaintiffs typically only have a few cases each.  

Judge Chhabria reads from Bayer’s press release regarding the settlement, which interestingly was released just at the end of Bayer’s financial quarter in late June.

The main feature is the U.S. Roundup™ resolution that will bring closure to approximately 75% of the current Roundup™ litigation involving approximately 125,000 filed and unfiled claims overall. The resolved claims include all plaintiff law firms leading the Roundup™ federal multi-district litigation (MDL) or the California bellwether cases and those representing approximately 95% of the cases currently set for trial…The resolutions were approved unanimously by Bayer’s Board of Management and Supervisory Board with input from its Special Litigation Committee.”

Chhabria says that he understood that press release to mean that the MDL is settled. Because indeed, that is what it says. In reality, only a fraction of those cases in the MDL are settled. My readers who are investors – if you need more proof that you are being lied to repeatedly, here is more evidence. That critical press release was misleading. Is there a securities law attorney in the house?  Because I would find this interesting if I were one…this sounds like securities fraud.

Chhabria continues: “Maybe there was no deal in the first place. I’m not sure. I’m having a little bit of trouble squaring what I read in Bayer’s press release in June with the numbers [of unsettled cases] you are giving me right now.” 

Monsanto attorney William Hoffman responded that at the time of the press release in June, Bayer thought they would finalize the terms as described. Apparently, the company was looking at the settlement in an “overall, holistic fashion.” As you might recall, this “holistic” fashion involved a class action that would ludicrously use a new panel of scientists to determine if glyphosate is carcinogenic. The underlying problems were that (a) Monsanto picks some of the scientists, (b) the panel’s determination of carcinogenicity binds all future litigation, (c) it continues to run out the clock on the current sick plaintiffs to determine if glyphosate is carcinogenic. 

Chhabria reiterates, “The way I read the press release, it says:

The company will make a payment of $8.8 billion to $9.6 billion to resolve the current Roundup™ litigation…and $1.25 billion to support a separate class agreement to address potential future litigation.

“I don’t read those sentences as suggesting that court approval of the class agreement is a contingency for the settlement of the existing cases.” Chhabria argues that the $8.8 billion – $9.6 billion of current litigation had reportedly been settled. He would NOT have given Bayer relief from litigation deadlines if the settlement was dependent on approval of some future class action. 

Hoffman calmly responds that this is merely a “speed bump” or “slight hiccup,” a “change in circumstance” if you will, as one party tries to put together a package they desire.

Chhabria retorts: “But I put the litigation on hold because I thought the settlements were done!” 

In a kind and likable tone, Hoffman admits, “Frankly, your honor, it has become more complicated…There are no final agreements.”

Hoffman suggests that, over the next 30 days, the teams work on both the settlement terms and develop a litigation plan in case a settlement doesn’t come to fruition. Or, as Hoffman puts it, they aren’t able to “put humpty dumpty back together again.”  

Before continuing, Chhabria asks Feinberg if he was shaking his head “no” when Hoffman proposed reopening litigation. I noticed that as well, and anticipated some strong Feinberg opinions forthcoming. 

Feinberg responds: “This is the risk of Zoom modern technology, every inflection, every nod, eyebrow raise you want, it picks it up!”  In reality, he has confidence and optimism that the cases will be resolved and that reopening litigation won’t be necessary.

bucket 2

In this problematic Bucket 2 of unsettled cases sit attorneys Brent Wisner, Aimee Wagstaff and Jennifer Moore. Wisner opens the discussion with some stunning updates.

“There is a lost fact in all of this – on the 23rd and 24th I was told it was settled. We had a deal. The simple fact is, we are not settled. As of today, they have completely terminated the agreement.” 

Chabbria asks, “What does that mean, they’ve completely terminated the agreement?” 

The agreement driving the negotiations was a term sheet, specifically finalizing how much money for which they are settling. That agreement was signed off by Wisner in March. 

However, on August 19th, Monsanto terminated the term sheet. Wisner asserts: “When I was told we had an agreement, either they didn’t have authority or they’ve reneged on it.” 

Wisner continues: “The only thing that has been successful in bringing Monsanto to the table has been litigation and I have clients who have cancer. They are dying. Every time they die, it fundamentally changes the dynamics of their case. I have an obligation to push those cases forward. Right now, I don’t think they’ve been honest with me in the process and I’m tired of it.”

Chhabria states that he is concerned that Monsanto may be manipulating the litigation process to its advantage somehow. “If I leave the stay in place, am I complicit in whatever shenanigans are taking place right now on the Monsanto side?” 

After a fifteen minute break, during which Feinberg left his audio and video running as he prepared himself a snack, Chhabria returns. A plan is hatched to reconvene in 30 days to check both settlement progress and discuss which cases may proceed in litigation.

FINAL NOTES

I am wondering what exactly is going on in that Bayer board room. While Monsanto successfully avoided culpability for horrendous poisonings throughout its history, it will be very hard for Bayer to keep punting this ball down Chhabria’s field, hoping no one catches up and demands settlement. 

ANOTHER NOTE: I originally posted a picture of the Zoom call, but within 10 minutes took it down realizing that the same rules apply on Zoom as in the courtroom – no pictures! Sorry about that. I blame it on the extremely wildfire smoky air quality of my office.

4 Comments

  1. Love your blog. Great great description of everything. Question….Are these meetings loaded into youtube or any site

    1. Thanks so much!! Unfortunately, they are not loaded anywhere to view – however, in the future, the hearings are public if you can catch it live!

  2. What advise would you have for a Mom whose son has a case in the MDL, the third bucket!
    He was 6 yrs old in 1994 when he was dx with T cell Lymphoblastic NHL. He had 18 months of chemo and the relapsed and had a BMT. He survived with only 15% chance.

    I have been researching this case for a year and your site and the USRTK site is the only place I can find actual information.

GG loves comments!! Let me know your thoughts!