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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcast. It's the largest

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Speaker 1: jury award in the US so far this year, and

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Speaker 1: the third consecutive legal defeat for Buyer. A jury has

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Speaker 1: awarded more than two billion dollars to a California couple

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Speaker 1: who claimed they got cancer as a result of using

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Speaker 1: its round up weed killer for about three decades. Will

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Speaker 1: Buyer reevaluate its legal strategy of fighting every case and

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Speaker 1: appealing every verdict? Joining me is Robert Hocket, a professor

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Speaker 1: at Cornell Law School. So Bob Buyer is three and

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Speaker 1: oh in jury trials. It could be liable for hundreds

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Speaker 1: of billions of dollars in damages if these jury verdicts

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Speaker 1: are repeated. How should it be weighing the importance of

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Speaker 1: this third loss? Hi? Do I think they should probably

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Speaker 1: view this as a kind of a perverse version of

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Speaker 1: three times as a charm, right, or third times a charm?

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Speaker 1: In other words, they should pack it in now this

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Speaker 1: is sort of you know, three strikes and you're out.

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Speaker 1: They really ought to start looking seriously into a settlement, right.

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Speaker 1: You and I have talked about this a couple of

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Speaker 1: times before they keep losing. It's not at all surprising

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Speaker 1: that they're losing. The merits of the plaintiffs cases look

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Speaker 1: very very strong, and the basis that buyer keeps giving

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Speaker 1: for continuing to hold out is very flimsy looking. So

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Speaker 1: it's beginning to look to me like the height of

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Speaker 1: foolishness or foolhardiness for buyer to continue to sort of

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Speaker 1: contest these particular cases. They really ought to be looking

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Speaker 1: in the settlement now. When the company's lawyer asked a

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Speaker 1: juror after the verdict what the jury wanted to hear

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Speaker 1: from Buyer, the juror said he wanted proof the chemical

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Speaker 1: was safe. Quote, I wanted you to get up and

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Speaker 1: drink it now, buyer want. Buyer wanted to tell the

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Speaker 1: jury that the e p A concluded last month that

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Speaker 1: roundups active ingredient is non carson a j and it

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Speaker 1: imposes no risk to the public health. Will that lead

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Speaker 1: to a reversal on appeal? Not? There's not a chance

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Speaker 1: in heydays of that, I don't think. I mean, the

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Speaker 1: thing to keep in mind here is that the you know,

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Speaker 1: the controversy around round up has been going on for

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Speaker 1: literally decades now, and there's just rutles and rutles of evidence,

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Speaker 1: you know, to the effect that it does have a

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Speaker 1: tendency to elevate your likelihood of acquiring some form of cancer. Right,

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Speaker 1: And so one last minute addition to the evidentiary pool,

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Speaker 1: in a pool that has hundreds of documents already, and

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Speaker 1: from the Trump e p A of all things, the

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Speaker 1: thought that that itself would suffice to overturn all of

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Speaker 1: this and change the course of history just on a dime.

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Speaker 1: I think it's just again the height of rule heartiness.

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Speaker 1: The verdict will likely be reduced the punitives, it's practically

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Speaker 1: all punitives, two billion im punitives compared to the rest. Now.

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Speaker 1: It also parts of that they're going to be appeals

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Speaker 1: in in the three cases. If buyer should win those appeals,

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Speaker 1: should that factor into its decision to settle or not

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Speaker 1: um it would it would definitely make sense for it

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Speaker 1: to factory in where that to happen, but it wouldn't

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Speaker 1: be dispositive. And it's also I think highly unlikely that

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Speaker 1: it's going to happen. The only the only ground on

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Speaker 1: which are the only sort of element of the most

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Speaker 1: recent decision that could be changed would be that the

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Speaker 1: punitive damages might be lowered by a bit. Right, there's

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Speaker 1: a kind of a rough benchmarker guideline at the courts

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Speaker 1: apply sometimes now to the effect that the punitives are

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Speaker 1: about ten times the compensatory um. That would mean in

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Speaker 1: this particular case, maybe cutting it back from two billion

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Speaker 1: to one billion, that would still be hardly chump change. Uh.

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Speaker 1: And again, given the apparent egregiousness with which Buyer seems

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Speaker 1: to have tried to conceal the controversy around round of

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Speaker 1: itself from people, the punitives are really prompted by that

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Speaker 1: right by a determination that Buyer is not that good

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Speaker 1: faith that has been acting a bit like the tobacco

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Speaker 1: companies did, as revealed in the suits around tobacco litigation. Right,

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Speaker 1: So you know, they might get a little bit of

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Speaker 1: a cut in that punitive damage award, but I really

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Speaker 1: doubt that they're going to see overturnings of the verdicts

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Speaker 1: on the marriage or you know, elimination or cutting of

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Speaker 1: the other commensatory damages in these cases. How do you

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Speaker 1: get plaintiffs to settle when they see that people in

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Speaker 1: cases are winning billions and that might be reduced to

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Speaker 1: a hundred million, but it's still a huge verdict. Why

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Speaker 1: would they want to settle? Well, that's that's a really

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Speaker 1: important question, Jim, that I don't think has actually been

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Speaker 1: posed enough out there in the press. But with every

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Speaker 1: loss that buyer suffers, the more recount, the more sort

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Speaker 1: of reluctant future plaintiffs are going to be to settle.

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Speaker 1: And that means that in a sense, time is kind

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Speaker 1: of running out on the opportunity to settle, which if

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Speaker 1: buyer indeed takes advantage of that opportunity, could save it

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Speaker 1: literally millions, if not billions of dollars. So this is

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Speaker 1: another reason for them really to start getting serious about

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Speaker 1: possibly settling. Here. As for why plaintiffs might nevertheless settle,

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Speaker 1: notwithstanding the string of victories that they've racked up so far,

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Speaker 1: it just sort of depends on how quickly you need

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Speaker 1: the money, so to speak, or how quickly you'd want

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Speaker 1: the money. Right, it does take a while to litigate

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Speaker 1: to get those bigger UH damages awards UH and so

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Speaker 1: you can imagine plenty of plaintiffs being willing to take

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Speaker 1: a settlement now rather than having to litigate, even though

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Speaker 1: they know that their prospects of winning are higher and

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Speaker 1: higher with each new suit that buyer loses in the

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Speaker 1: years of appeals. Now is reaching a settlement also complicated

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Speaker 1: by the fact that this product is continuing to be sold,

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Speaker 1: So as days go on, buyer maybe adding new plaintiffs

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Speaker 1: to this pool of plaintiffs. Yeah, I mean, I think

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Speaker 1: that's that's that's definitely true, right, I mean, they're more

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Speaker 1: potential plaintiffs with each passing month that the product is sold.

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Speaker 1: I'm sure that buyer is banking on the proposit that maybe,

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Speaker 1: somehow or another, after all of these years, the product

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Speaker 1: will nevertheless be quote unquote proven to be safe. But

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Speaker 1: that's again, that's that would be quite a hail, Mary Hope.

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Speaker 1: It seems to me and the juror whom you quoted before,

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Speaker 1: I think it is just the you know, the kind

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Speaker 1: of the poster child for the attitude that people have now,

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Speaker 1: which is that after all these years, the presumption is

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Speaker 1: definitely to the effect that this is a dangerous product.

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Speaker 1: And what that means is that the burden of proof

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Speaker 1: is now on buy or to show that it's not unsafe,

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Speaker 1: whereas you know, way back when the burden would have

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Speaker 1: been on the plaintiffs to show that it is unsafe.

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Speaker 1: But again, the fact that the presumption is shifted in

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Speaker 1: this way, I think makes it even more surprising that

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Speaker 1: buyer is not looking into um settling. So um, this

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Speaker 1: verdict is coming about two weeks after shareholders expressed their

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Speaker 1: disapproval of the way the CEO has handled this month

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Speaker 1: Santo acquisition. Does that put pressure on them to put

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Speaker 1: aside more money for litigation loss or to settle? I

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Speaker 1: think it puts a great deal of pressure on them

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Speaker 1: actually to settle, uh, and if anything, maybe to set

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Speaker 1: aside money for possible shareholder suits that might ultimately be

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Speaker 1: brought against the board and the officers at the firm. Right,

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Speaker 1: because at this point it really is beginning to look reckless. Um,

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Speaker 1: you know what what the management of buyer is doing

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Speaker 1: in continuing to refuse to settle and continuing to sort

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Speaker 1: of hemorrhage money in the form of damages that are

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Speaker 1: awarded to various plaintiffs. At some point, the duty to

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Speaker 1: the shareholders begins to be um. You know, kind of

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Speaker 1: come into question here whether the the whether the board

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Speaker 1: UH is actually conforming to or acting in importance with

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Speaker 1: its duty to shareholders begins to come into questions. So

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Speaker 1: if they're going to set aside money, it seems to

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Speaker 1: me that they might want to set it aside a

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Speaker 1: for an actual settlement and be maybe for shareholder suits

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Speaker 1: down the pike. All right, Thanks so much, Bob. As always,

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Speaker 1: that's Robert Hocket. He's a professor at Cornell Law School.

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Speaker 1: Now a note, analyst at Bloomberg Intelligence have raised their

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Speaker 1: estimate for a settlement value for these lawsuits to as

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Speaker 1: much as ten billion dollars. That's up from a peak

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Speaker 1: of two billion dollars. Thanks for listening to the Bloomberg

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Speaker 1: Law Podcast. You can subscribe and listen to the show

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Speaker 1: on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast.

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Speaker 1: I'm June Brasso. This is Bloomberg