Opinion | The Roundup Stickup
By The Editorial Board
Tort lawyers often use the threat of jackpot verdicts to extort settlements from business targets. But when does a shakedown become criminal extortion? Last week the federal government charged Timothy Litzenburg for allegedly crossing that legal line.
Mr. Litzenburg, 37, made a name for himself at the Miller Firm in Virginia, where he was part of a team suing Bayer on behalf of a groundskeeper who said the weed killer Roundup caused his cancer. Trial lawyers profit by taking a hefty chunk of a settlement or damages. But when Mr. Litzenburg opened his own law firm last year, he allegedly had a different business model in mind.
The feds say the extortion plot began in September when Mr. Litzenburg sent a draft complaint to “Company 1,” identified by the Wall Street Journal as Amsterdam-based chemical maker Nouryon. The lawyer said the company had created chemical compounds used in Roundup and “knew of the carcinogenic properties of these chemicals but failed to warn” users about the risks, the federal complaint says.
Mr. Litzenburg allegedly followed up his draft lawsuit threat with an offer, which he repeated in emails and recorded phone calls. The company could pay the plaintiff $5 million, enter into a $200 million “consulting arrangement” with him and his associates, and avoid what Mr. Litzenburg allegedly described as “the parade of horribles that has been the Roundup litigation for Bayer/Monsanto.”
“Another thing I can guarantee and warrant: in the absence of a so-called ‘global’ or final deal with me, this will certainly balloon into an existential threat” to the company, Mr. Litzenburg allegedly wrote in an email. The federal complaint says he warned that “defense costs and cost to ultimately resolve the thousands or tens of thousands of cases would be well into the billions, setting aside the associated drop in stock price and reputation damage.”
Mr. Litzenburg also allegedly said that “even if you guys win cases and drive value down,” there was unlikely “any way for you to get out of it for less than a billion dollars. And so, you know, to me, uh, this is a fire sale price that you guys should consider.”
If the company paid up, Mr. Litzenburg allegedly said he’d discourage others from filing future lawsuits. To deter plaintiffs, he’d even consider participating in a pre-trial deposition to which the company could bring its own toxicology experts, “and we ask the wrong questions,” creating a “transcript where I basically got whacked,” Mr. Litzenburg allegedly said in a recorded call. The transcript could be “kept in a vault somewhere to pull out if you ever got bothered by someone that didn’t know me or whatever,” he said, according to the complaint.
Instead of agreeing to Mr. Litzenburg’s alleged offer, the company called federal prosecutors. Mr. Litzenburg did not respond to our request for comment, but his lawyer told the press last week that his client isn’t guilty and that the charging document may contain inaccuracies.
Mr. Litzenburg will get his day in court, but the entire Roundup litigation is a stickup. The Environmental Protection Agency and international regulators have conducted extensive research and concluded that glyphosate, the active ingredient in Roundup, isn’t carcinogenic. That evidence hasn’t stopped three juries from imposing more than $2.4 billion in penalties. Judges have cut those cumulative damages to some $189 million, and the verdicts are being appealed. But Bayer faces Roundup lawsuits from some 42,700 plaintiffs.
Mr. Litzenburg may have figured he could get away with his alleged extortion because he’s seen first-hand the damage that junk-science litigation can do regardless of the truth.