A comprehensive settlement of Roundup herbicide litigation is marching through the Missouri courts and scheduled to be finalized within the next three months. There will be a flurry of media reports soon, emanating chiefly from the companies and the compensated class counsel who recommend the proposed deal. This settlement is extremely disturbing to many affected victims who have been following these developments. I will try as succinctly as possible to explain why and leave it to the reader to consider whether the settlement seems as unfair to you as it does to me.
Most consumer law attorneys know that lawyers for hundreds of cancer victims have spent years trying to recover from the weedkiller known as Roundup, produced largely by the US chemical company Monsanto and its German parent Bayer. Roundup has been linked to millions of cancers. The science establishing the link is highly persuasive, and the litigation has already produced multi-million dollar recoveries; there are in the neighborhood of 125,000 individual plaintiffs with some 60,000 suits going forward that involve many types of exposure, many patterns of diagnosis, many varieties of cancer and many different after-effects. The litigation is on my radar because my wife developed Non-Hodgkin lymphoma in 2005, and we have good reasons to believe she developed it after constant gardening where landscaping applications of Roundup were occurring regularly.
Very recently a group of law firms bypassed most other attorneys and worked with the defendants. They located a cooperative and recently-appointed judge in a Missouri state court who in short order certified a class and preliminarily approved a universal settlement. The basis for the certification and for finding that questions common to the class members predominate over individual aspects of each case is questionable.
The proposed Class Action Settlement Agreement (CASA) “low-balls” the cancer victims. It obligates the principal defendants Monsanto and Bayer who promise to pay in installments up to 7.2B over sixteen years. If it goes through according to the proposed compensation schedule, however, this is quite a bargain for the defendants. Thousands of claims probably worth millions of dollars apiece in court are transformed into claims for as little as $6,000–$14,500, with the vast majority of class members who are consumers/residential users of Roundup entitled to no more than $40,000. Just the medical expenses of most of the cancer victims were far more. Considering that this settlement will extinguish present and the future claims of those who have not yet been diagnosed, and that there are millions of exposures (Roundup is still being sold here and abroad and deployed in weapons of war), the amount of potential liability being wiped away by the settlement is staggering.
The law insists that plaintiffs be allowed to opt out of class action litigation, but the CASA creates an “obstacle-course” opt-out process. Among the obstacles is a novel overreach which provides that after a plaintiff has exercised an opt-out, Monsanto can knock out “opt-outs” it does not like (CASA p.57).
Consumer advocates may find another provision in the CASA particularly troubling: a novel provision by which Monsanto and Bayer would “claw back” an increasing credit against the total settlement fund (CASA p.27). As more plaintiffs opt-out, less will be available to the settlement class. As I understand it, up to $400 million can be deducted— meaning every person who exercises the right to opt out takes money from remaining class members. (CASA p.27). One attorney calls it “an unprecedented collective punishment mechanism designed to make the exercise of a due process right toxic to the class.”
Why haven’t generally vigilant consumer and tort law watchdogs, who have confronted bad consumer class actions in the past, done anything to confront this one? Not because they believe the substance of the CASA relief is fundamentally fair. It seems to be because they accept a key assertion of the CASA proponents– that all the state lawsuits are on the verge of being “wiped out” by the Supreme Court case which may decide that federal herbicide labelling law preempts state law actions based on the duty of sellers to warn of risks. “Half a loaf is better than none.” The class notice encourages this view, declaring that “Class Counsel and the Class Representatives recommend this settlement because of several major risks that could result in [a class member] getting zero money if the lawsuits continue[.]” It elaborates by stating that the Supreme Court could decide in Monsanto Co. v. Durnell, No. 24-1068, “that federal law prevents (preempts) most of these lawsuits entirely because the EPA has approved Roundup’s labels.”
This is more than inaccurate however; it amounts to a scare tactic. Even if the Supreme Court rules in Monsanto’s favor, it will assuredly leave in place the many other causes of action that are being brought by the Roundup plaintiffs in their litigation. The question presented in the pending case, Durnell, addresses only label-based failure-to-warn claims, and does not affect non-label-based failure-to-warn claims, or design defect, negligence, or breach of warranty claims. See the Supreme Court’s Certiorari List, Durnell (“The petition . . . is limited to the following Question: Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure to warn claim where EPA has not required the warning.”) The Supreme Court in 2005 expressly held that design defect, defective manufacture, negligent testing, and breach of express warranty claims are not pre-empted by FIFRA. Missouri courts themselves have already rejected Monsanto’s stay motions premised on Durnell as “without merit.” See Amos v. Monsanto Co., 20SL-CC-03676 (Mo. Cir. Ct. Jan. 30, 2026).
And so I return to my initial position: the Class Action Settlement Agreement in the Roundup Litigation is disturbing and deserves a great deal more attention from the consumer law community than it has thus far received. The opt-out deadline is currently set as June 4, 2026. The Fairness Hearing is July 9, 2026. Concerns about the settlement can be addressed to Patrick Collins, Circuit Clerk’s Office, to the attention of Hon. Timothy Boyer, in his official capacity as Circuit Judge, Div. 8, 6th Floor, Circuit Court of the City of St. Louis, Clyde S. Cahill Courts Building, Case No. 2622-CC00325.
Norman I. Silber
Boas and Claster Professor of Law
Maurice A. Deane School of Law, Hofstra University
