When Bayer acquired Monsanto in 2018 for about $63 billion, you have to wonder whether executives knew the extent of the liabilities they were inheriting. The latest debacle is a collection of veritable hit lists compiled by Monsanto, containing hundreds of names and other personal information about journalists, politicians and scientists, including their opinions about pesticides and genetic engineering.1
Monsanto’s so-called “stakeholder mapping project”2 was first uncovered in France, but now it appears Monsanto likely had multiple lists to track people in countries throughout Europe. Matthias Berninger, Bayer’s head of public affairs and sustainability, told reporters, “It’s safe to say that other countries in Europe were affected by lists … I assume that all EU member states could potentially be affected.”3
Bayer Opens Investigation Into Monsanto Surveillance Project
In May 2019, French prosecutors said they had opened an investigation into Monsanto’s alleged watch lists full of private information pertaining to about 200 people. Bayer stated that it intends to fully support France in its investigations while conducting one of its own.
The seed and pesticide giant hired law firm Sidley Austin LLP for the investigation, which began informing people who were stalked by Monsanto of the issue in late May.4
According to Bayer, “Currently, we have no indication that the preparation of the lists under discussion violated any legal provisions,”5 although Berninger also said, “We consider what we have seen so far to be completely inappropriate.”6 In a conference call, he further stated:7
“There have been a number of cases where — as they would say in football — not the ball was played but the man, or woman, was tackled. When you collect non-publicly available data about individuals a Rubicon is clearly crossed.”
In addition to hiring law firm Sidley Austin to investigate Monsanto’s privacy breaches, Bayer said it had stopped communications and public affairs activity with the public relations agency FleishmanHillard, which was reportedly involved in creating Monsanto’s hit lists — at least for the time being.8 As for their role, FleishmanHillard defended their work, saying it’s been “mischaracterized,” and adding:9
“Corporations, NGOs and other clients rightfully expect our firm to help them understand diverse perspectives before they engage. To do so, we and every other professional communications agency gather relevant information from publicly available sources.
Those planning documents are fundamental to outreach efforts. They help our clients best engage in the dialogue relevant to their business and societal objectives.”
Bayer Inherits Billions in Monsanto Lawsuit Damages
More than 13,400 cases are currently pending against Bayer, alleging that Monsanto’s Roundup caused their cancer and the company failed to warn consumers about cancer risks. In the first three cases to go to trial, jury verdicts have overwhelmingly favored the plaintiffs, leaving Bayer saddled with billions in damages.
In the first trial involving Dewayne Johnson, it was found Monsanto “acted with malice or oppression” and was responsible for “negligent failure” by not warning consumers about Roundup’s carcinogenicity.10 Johnson, who is terminally ill, claimed Roundup caused his Non-Hodgkin lymphoma, and the jury agreed.
Monsanto was ordered to pay $289 million in damages to Johnson, although the award was later reduced to $78 million. Bayer appealed the case, asking a court to throw out the judgment on the grounds that Johnson may not live long enough to experience the full pain and suffering that they’re compensating him for. The appeal states:11
“‘[D]amages for future pain and suffering are based upon plaintiff’s probable life expectancy in his or her injured condition … [C]ompensation for pain and suffering is recompense for pain and suffering actually experienced, and to the extent that premature death terminates the pain and suffering, compensation should be terminated’] …”
In the second case, a judge ruled in favor of plaintiff Edwin Hardeman, who alleged his repeated exposures to Roundup, which he used to kill weeds on his 56-acre property, caused him to develop cancer. Bayer was ordered to pay more than $80 million in the case, which also found Monsanto failed to warn consumers that the product carried a cancer risk.12
Hardeman was awarded $75 million in punitive damages, $5.6 million in compensatory damages and $200,000 for medical expenses,13 but Bayer, again, plans to appeal. In the third case, heard before the Alameda County Superior Court of California, a married couple, Alva and Alberta Pilliod, claimed they both developed Non-Hodgkin lymphoma after regular use of Roundup.
The jury decided in the Pilliods’ favor, ordering the chemical giant to pay $2 billion to its victims. Bayer plans to appeal the verdict, and the damages may ultimately be reduced, as it’s generally upheld that punitive damages shouldn’t be more than 10 times higher than compensatory damages. However, the zero for 3 record for Bayer has experts suggesting settlement talks may be in order.14
Bayer Pushed Toward Settlement: 9/11 and BP Oil Spill Lawyer to Mediate Settlement Talks
The Hardeman trial was the first heard in the U.S. District Court in San Francisco, where more than 960 Roundup lawsuits are currently pending under U.S. District Judge Vince Chhabria.15 Chhabria has now ordered attorneys for Bayer and the plaintiffs to meet for settlement talks, appointing attorney Kenneth Feinberg as the mediator.16
Feinberg has been involved in dispute resolutions in a number of high-stakes cases, including for victims of 9/11 and the BP Deepwater Horizon disaster. Bayer said it will act in “good faith” and participate in the mediation, but it doesn’t plan to negotiate until its appeals have run their course, a process that could take years.
Meanwhile, Chris Loder, Bayer vice president for external communications, said in an emailed statement to Bloomberg that the company would “remain focused on defending the safety of glyphosate-based herbicides in court.”17 At the same time, Chhabria scheduled the next Roundup case in his court for February 2020, and said at least 16 additional cases should be ready to go to trial in California before then.18
Bayer’s Value Tanks as Investors Turn on Executives
Since acquiring Monsanto, Bayer’s value has fallen about 45%,19 and at Bayer’s annual general meeting in Bonn, Germany, 55.5% of shareholders voted against ratifying the management’s actions.20
The vote was symbolic in nature and won’t legally change anything but, in 2015, a 39 percent nonapproval vote against Deutsche Bank AG co-CEO Anshu Jain led to him stepping down.21 This isn’t likely to be the outcome in Bayer’s case, however.
“A hasty replacement of the CEO would only increase the risk of a breakup and therefore can’t be in the interest of long-term oriented investors …” Bayer shareholder Janne Werning said.22 Still, it’s been decades since a majority of shareholders have voted against managements’ actions.
As for what compelled the possibly-disastrous Monsanto acquisition in the first place, The Telegraph’s deputy business editor Ben Marlow stated it was part arrogance and greed:23
“On one side was Bayer’s uber-ambitious new boss Werner Baumann, who seemed determined to start his promotion to the top job with an almighty bang, unveiling Germany’s biggest ever takeover, a mere four weeks into the job.
Meanwhile, his opposite number at Monsanto, Hugh Grant, had a mind-boggling $226m (£173m) in shares and severance pay resting on the merger. Perhaps that explains why the boards of both companies were prepared to overlook the financial and legal risks of the tie-up.”
EPA Continues to Protect the Chemical Industry
In their latest review of glyphosate, the U.S. Environmental Protection Agency (EPA) released a draft conclusion April 30, 2019, stating the chemical poses potential risks to mammals and birds that eat treated leaves, as well as risks to plants,24 but poses “no risks of concern” for people and “is not likely to be carcinogenic to humans.”25
Bayer is now using that to its advantage as a “silver bullet” defense of Roundup. Reuters quoted one of Bayer’s lawyers, William Hoffman, who stated, “We have very strong arguments that the claims here are preempted … and the recent EPA registration decision is an important aspect of that defense.”
The news outlet continued, “Preemption is generally regarded as a ‘silver bullet defense’ because it stops claims across the board, said Adam Zimmerman, a law professor at Loyola Law School in Los Angeles.”26
In stark contrast, in March 2015, the International Agency for Research on Cancer (IARC) determined glyphosate to be a “probable carcinogen” based on evidence showing the popular weed-killing chemical can cause Non-Hodgkin lymphoma and lung cancer in humans, along with “convincing evidence” it can also cause cancer in animals.
In addition to cancer, increasing research suggests glyphosate, the active ingredient in Roundup, is associated with liver disease, including a more severe form of nonalchoholic fatty liver disease (NAFLD) called nonalcoholic steatohepatitis, or NASH.27
Roundup Poses Risks of Antibiotic Resistance
There are serious environmental concerns surrounding Roundup use as well, which alone should prompt the EPA to take action. Commonly used herbicides promote antibiotic resistance by priming pathogens to more readily become resistant to antibiotics.28
This includes Roundup (the actual formulation of Roundup, not just its active ingredient glyphosate in isolation), which was shown to increase the antibiotic-resistant prowess of E. coli and salmonella. Further research published in the journal Microbiology set out to determine what ingredients of the commercial herbicide formulations caused the antibiotic resistance effect, with results showing the active ingredients are to blame.29
“Active ingredients induced changes in antibiotic responses similar to those caused by complete formulations. This occurred at or below recommended application concentrations,” the researchers noted.
How to Avoid Glyphosate Exposure as Much as Possible
Bayer continues to assert glyphosate is safe, continuing on Monsanto’s decadeslong crusade to make people believe Roundup herbicide is something they should be spraying with abandon in their backyards (in addition to the exposures they receive from glyphosate residues in food).
You don’t have to fall for the hype, and even though nearly 300 million pounds of glyphosate are used in the U.S. each year,30 you can take steps to reduce your exposure.
In addition to not using the chemical in your home garden, actively seek out and support organic, regenerative farmers, who have decided that avoiding chemical-treated seeds and excessive chemical spraying is essential to staying healthy, nurturing soil health, protecting the environment and growing nutritious food, all at the same time.
