Clear Statements is a recurring series by Abbe R. Gluck on civil litigation and the modern regulatory and statutory state.
The Supreme Court on Monday heard argument in Monsanto Co. v Durnell, a complex dispute over whether a federal law governing pesticide labeling and registration prevented a Missouri jury from awarding $1.25 million to a volunteer gardener who alleged that Monsanto had failed to warn that its popular weed killer Roundup causes cancer. The preemption arguments – which centered around whether state law could add a warning requirement when the federal agency, the Environmental Protection Agency, has not required any warning – are intricate and have been widely covered elsewhere, except for one aspect involving administrative deference that I will return to at the end of this column. But first, it’s worth zooming out to understand the case’s importance for the bigger picture – not only for the billions of dollars at stake in the more than 60,000 Roundup cases proceeding across the nation, but also for how the case implicates important, and complicated, questions about class actions and other forms of mass litigation.
First, the Missouri jury trial involved just one plaintiff, but there are thousands of other lawsuits pending. One set of those lawsuits is currently in a rush to settle, specifically before a deadline of June 4, which is prior to when the Supreme Court decision is expected. The plaintiffs considering that settlement now have to decide whether to agree to a $7.25 billion deal without knowing whether the court will uphold the Missouri verdict. The deal has some potential weaknesses, but if the court rules for the company, the plaintiffs’ bargaining power could drop dramatically. And any settlement in the state court will have ripple effects in the parallel federal lawsuits happening across the country.
Like many complicated mass cases involving health harms, the Roundup cases have been filed in both state and federal courts, through different aggregating procedures. The federal action is proceeding as a “multi-district litigation.” MDLs have emerged over the past decade as a key class-action substitute: mass harms are often not strong candidates for federal class actions under recent Supreme Court jurisprudence, because the court demands a high level of commonality among claims that can be very difficult to satisfy when individual illnesses are an issue. As a substitute, MDLs are formed when many similar individual cases are filed in federal courts across the country; those cases are then consolidated and transferred for pretrial management to a single-federal judge – this time, Judge Vince Chhabria in the Northern District of California. Once centralized in this way, most MDLs face enormous pressure to craft a centralized settlement, and the vast majority (more than 97%) do settle – even though the governing statute contemplates that individuals will ultimately return to their original courts for their own trials.
The other mass case here is the parallel case filed in state court in Missouri. That case was filed about two months ago, as a “settlement class action,” on behalf of some 40,000 plaintiffs. A settlement class action is a special animal: It’s a case that is filed with the purposes of settling immediately and taking advantage of class action’s efficiencies to do so. That is why cases filed as settlement class actions almost immediately produce resolution rather than proceeding through pretrial work.
This particular settlement class action has stirred controversy. Commentators and objectors have complained that the settlement gives too much money to the lawyers and too little to the harmed individuals. They also have complained that the settlement inappropriately incentivizes the lawyers to push clients to accept the deal: Any lawyer with more than 25 clients who do not accept must forfeit their own legal fees under the terms of the settlement. That, some argue, creates unseemly pressure on lawyers to push clients to accept the offer. Finally, the settlement’s deadline to join – June 4, even though the Supreme Court is likely to rule after that in Durnell – has sparked criticism for forcing the parties to make their decisions in a vacuum before knowing how Monsanto’s preemption claim turns out. Of course, that’s probably the point – accepting the settlement is like taking a bet.
Looking through a wider lens, the settlement also has highlighted some interesting questions about judicial power over mass harms litigation in general. First, there is a question of jurisdiction – does the Missouri court really have power to bind all of these litigants, from across the country, including those who have not yet even filed claims?
Modern American class action jurisprudence relies on the twin ideas of representation and consent to justify these far-flung actions: the named plaintiffs and their lawyers ensure that everyone involved, even those far away, are properly represented in the litigation and plaintiffs’ ability to opt out of the class means those who remain have effectively consented to their claims being decided in a state different from their own. In recent years, however, some scholars, including myself and Elizabeth Burch, have started to ask questions about whether these traditional guardrails are really enough. Should there be more due process protections for plaintiffs for these kinds of cases? In this particular case, the parties are currently engaged in a heated dispute over whether it’s easy enough for plaintiffs to opt out, whether the terms of the settlement are fair, and whether the lawyers and representative plaintiffs are really doing an adequate job representing everyone.
Another big-picture question involves the relationship between state and federal courts in these kinds of complex cases. Massive federal MDLs tend to exert great leverage over national litigations over public harms – to the surprise of many, they even exert leverage over cases not actually in the MDL. In the nationwide opioid litigation, for example, it has been widely reported that litigators in state courts, including state attorneys general, were brought to the bargaining table in the federal MDL to work out a global settlement – that is, a settlement that would cover everyone, including those in state-court cases. Sometimes this leverage leads to questionable practices. One such practice that has raised eyebrows is when MDL judges require attorneys in parallel state cases to pay into the MDL’s common benefit fund to cover some of attorneys’ fees for the lead MDL lawyers, on the theory that everyone benefits from a global settlement. Another practice that some have criticized is MDL judges’ tendency to view anything less than global settlement as a kind of failure. Burch and I have argued that, instead, more remands of MDL cases to their original courts would allow for better state law development and give more individual plaintiffs a sense of agency over their own cases.
The Roundup litigation offers an interesting twist on this kind of state-federal dance. First, this time, it is the state-court-based settlement, not the federal MDL, that is exerting the pressure with its aggressive timeline. The state settlement also sweeps in all cases that are not in the MDL – and lawyers leading the state cases have argued that includes cases that were originally part of the MDL but have since been remanded back to their original jurisdictions for just the kind of individual trials that some of us have advocated. Some plaintiffs have responded that those MDL remand cases do not belong in the state settlement at all, on the ground they should still be considered creatures of the federal MDL – in other words, just because those cases were sent back to their original courts after pretrial work in the MDL does not mean they should now be swept up in a new state-court class action (at least not without clear notice and an easy opt out). This is a novel, and admittedly wonky, but important question about the status of cases that are originally part of an MDL and then are sent home after the MDL works through the pretrial stage. But this is exactly what the MDL statute initially contemplated even if, in practice, global settlement has been much more frequent than remands.
This story is made all the more interesting by the fact that the MDL judge here, Chhabria, has been one of the most vocal advocates of MDLs relinquishing some of their centralizing power and effectuating more remands. (He also refused to make state counsel pay into the federal MDLs common benefit fund in this case.) And in fact, there is a motion pending before him asking the federal court to intervene in aspects of the state settlement. At a hearing on Thursday, Chhabria raised questions about the Missouri state court’s jurisdiction and the fairness of the settlement, calling the whole situation “mind boggling” – but still expressed concern about the idea of federal court interference. Here, Chhabria’s efforts to practice what he preaches may thus lead some of his remanded MDL cases to be swept into the state class action and otherwise limit his influence over the state proceeding.
Finally, let’s return to administrative deference and the Loper Bright issue that popped up at oral argument in Durnell. This relates to the question of the state/federal relationship, but in a different way. At oral argument, Justice Samuel Alito asked whether Loper Bright Enterprises v. Raimondo – the 2024 case that overruled the 40-year-old regime of deference to administrative agency statutory interpretations set forth in Chevron v. Natural Resource Defense Council – also applies to agency decisions about whether their authorities displace state law, a question known as “ administrative preemption. “
For those who followed Chevron’s demise over the past decade, the question came as a surprise. Prior to Loper Bright, the court had considered administrative preemption several times. Most recently, in the 2013 case of City of Arlington v. FCC , Chief Justice John Roberts in dissent expressed concern that an agency could have so much authority as to receive deference about the limits of its own powers versus the states. To that, Justice Antonin Scalia replied, in essence, either you’re okay with Chevron or you’re not – Chevron gave agencies discretion to interpret their governing statutes, which in turn meant that they indeed were being deferred to about decisions about the boundaries of their own authority in virtually every case, including those involving the states. Loper Bright undid the Chevron regime, and one would have thought settled the question in Arlington in the chief’s favor. Yet Alito left the question open, stating that, while the court may ultimately decide as much, “it's not there now.” Ironically, the idea that deference remains for an agency’s interpretation of its authority to preempt state law would mean that one of the most controversial applications of Chevron is also one of the few to survive the case’s demise.
As for the ongoing Roundup litigation, it’s always possible that the settlement winds will shift in the wake of the argument. But either way, the case raises bigger picture questions about the future of aggregate public harms litigation and federalism that we will surely see again.
