The “marriage made in hell” that farmers, environmental activists, and consumers have been dreading is scheduled to be consummated this week. Despite serious massive protests, the U.S. Department of Justice announced last week that it would approve the merger on the condition that Bayer divest itself of its BASF division, which represents approximately $9 billion in assets.
Bayer has reached similar agreements with regulators in the European Union and India. Despite the divestiture, the merger will make Bayer the largest agricultural products company on the planet. Significantly – but given Monsanto's sullied reputation, not surprisingly – Bayer plans to “retire” the Monsanto name, effectively ending the latter's 117-year-old existence.
There are still hundreds of lawsuits pending against Monsanto, alleging the carcinogenicity of its flagship product Roundup. Court documents have shown that Monsanto has falsified data and engaged in a massive campaign of disinformation and collusion with government agencies in order to conceal the dangers of Roundup – dangers of which the company has long been aware. The question now: how will the merger with Bayer and disappearance of the Monsanto name affect plaintiffs' cases?
In general, when Corporation “A” buys Company “B”, the buyer purchases its liabilities as well, including outstanding debts and other obligations. Legally, a lawsuit is considered a debt, even if it has yet to be resolved. This means that in taking over Monsanto, Bayer will be liable for any current lawsuits pending. When this is the case, the buyer may choose to settle all outstanding claims, or the parties will go to trial.
There has already been serious speculation that Bayer's already questionable reputation will be further tarnished by its acquisition of Monsanto. In a formal statement to the media, Bayer has said, “Monsanto will no longer be a company name...the acquired products will retain their name and become part of the Bayer portfolio.” They have given no reason, but it is likely that Bayer is “retiring” the Monsanto name because of its infamy.
Lawsuits over the glyphosate-containing herbicide Roundup are only part of the problems that Bayer will have to deal with going forward. Monsanto is also facing legal action over dicamba, another herbicide that has caused massive crop damage across the central U.S., and has been targeted in a number of cancer lawsuits in California. Recently, Monsanto lost a bid to stop California from listing glyphosate as a carcinogen.
According to a February story published in the German newspaper Handelsblatt, employees at Bayer are “tense,” and have expressed concerns that Monsanto's reputation will cause damage to their own company. Bayer's executives are no doubt hoping that getting rid of the Monsanto name will cause people to forget about crop damage and cancer. There is little chance of that happening, particularly in light of Bayer's own checkered past.
Nor will Bayer escape its new acquisition's legal liabilities. Bayer has not mentioned lawsuits pending against Monsanto, but if they are wise, they will attempt to reach a settlement rather than engage in a protracted legal battle that is likely to drag on for years and cost hundreds of millions of dollars.