In the $7.25 billion Roundup settlement, opting out comes at a price

By Jenna Greene

March 5 (Reuters) – Some things work best if everyone plays along: A game of tug-of-war; the quiet car on a train – and the proposed $7.25 billion Roundup class action settlement.

What’s notable about the deal, which aims to resolve thousands of current and future claims alleging the weedkiller causes cancer, is how it’s structured to keep class members from walking away.

That includes a provision denying legal fees to individual plaintiffs’ lawyers with more than 25 clients who opt out of the settlement, and another that could shave millions of dollars off Bayer’s total payout if more than 650 plaintiffs reject the deal.

A state court judge in Missouri on Wednesday gave preliminary approval to the settlement. But Roundup maker Monsanto, a unit of Bayer, still has the right to terminate the agreement entirely if an “excessive” number of plaintiffs opt out.

The escape hatch reflects a central tension in high-stakes class actions: some plaintiffs may believe they could win more money litigating on their own, but defendants willing to cut a check to resolve the uncertainty of litigation need the vast majority of claimants to stay in. 

Putting financial pressure on individual plaintiffs’ lawyers is one form of leverage.

“The whole concept of class action (legal) fees is you’re providing a common benefit to everyone,” plaintiffs’ lawyer Christopher Seeger, who helped negotiate the settlement, told me. When class members opt out, they’re “exposing the deal to risk – and that should be taken into account.” In essence, he added, it amounts to “a common detriment” to the class.

The public version of the Roundup agreement doesn’t define what qualifies as an “excessive” number of opt-outs, and a Bayer spokesperson declined to specify. The company has not admitted liability or wrongdoing.

Class members who reject the settlement have until June 4 to submit their opt-out paperwork. It’s a process that plaintiffs’ lawyer Asim Badaruzzaman, a partner at Sbaiti & Company who was not involved in negotiating the settlement, calls a “confusing maze.”

With 11 separate requirements including wet-ink signatures, government photo ID and sworn declarations, it “appears designed to trap cancer patients” in the settlement, he said via text.

As my colleague Diana Novak Jones has reported, Bayer faces about 65,000 claims in U.S. state and federal courts that Roundup exposure caused non-Hodgkin lymphoma. In settling the class action, the company in a Feb. 17 news release said it was doing so “solely to contain the litigation.”

Bayer, which has said decades of studies have shown Roundup and its active ingredient glyphosate are safe for human use, has prevailed in a series of trials. However, plaintiffs have also won several large judgments, including a $2.1 billion award by a Georgia jury in 2025 and a $332 million California verdict in 2023.

The settlement payouts are based on multiple factors. According to plaintiffs’ lawyers, the average award for a younger person with aggressive non-Hodgkin lymphoma who used Roundup as part of their job would be about $165,000, while someone first diagnosed at age 78 or older would get about $10,000.

Like many large settlements, the deal requires plaintiffs’ lawyers to attest that they made their “best efforts” to recommend the agreement to their clients — with the obligatory ethical caveat that they also exercise their “independent judgment” in offering advice.

Weighing in favor of taking the deal – and the certainty of payment that it offers – is looming review by the U.S. Supreme Court that could sharply limit the litigation. In April, the high court will hear Bayer’s appeal that federal law preempts state law failure-to-warn claims involving the Roundup label.

Still, Seeger said negotiators in crafting the settlement recognized that plaintiffs’ lawyers, however persuasive in touting the deal’s advantages, may have “a handful of clients who say, ‘I want more, I want my day in court.’” 

Up to a point.

If more than two dozen of a lawyer’s pre-existing clients opt out – and the lawyer continues to represent them – that lawyer under the terms of the settlement becomes ineligible for any share of the legal fees. This holds true even if the lawyer also has many more clients who stay in.

The settlement doesn’t specify how much the plaintiffs’ lawyers will get paid overall. Instead, the negotiators are to submit a fee application to Judge Timothy Boyer in St. Louis before the fairness hearing scheduled for July 9.

In addition, if more than 650 class members opt out, Bayer can deduct what it would have paid them from the overall settlement fund, up to $400 million.

Seeger, however, is optimistic it won’t come to that. Instead, he predicts that an “overwhelming” number of plaintiffs will pick the certainty of settlement over the risk of opting out.

(The opinions expressed here are those of the author, a columnist for Reuters.)

(Reporting by Jenna Greene)