John D. Carson v. Monsanto Company
U.S. Court of Appeals for the Eleventh Circuit
John D. Carson v. Monsanto Company, 72 F.4th 1261 (11th Cir. 2023)
John D. Carson v. Monsanto Company
Opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10994
____________________
JOHN D. CARSON,
Plaintiff-Appellant,
versus
MONSANTO COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:17-cv-00237-RSB-CLR
____________________
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2 Opinion of the Court 21-10994
Before WILLIAM PRYOR, Chief Judge, and WILSON, JORDAN,
ROSENBAUM, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER,
ABUDU, and TJOFLAT, ∗ Circuit Judges.
WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court,
in which JORDAN, ROSENBAUM, NEWSOM, BRANCH, GRANT, LUCK,
LAGOA, BRASHER, ABUDU, and TJOFLAT, Circuit Judges, join.
JORDAN, Circuit Judge, filed a concurring opinion.
WILSON, Circuit Judge, filed a dissenting opinion.
WILLIAM PRYOR, Chief Judge:
This appeal presents the question whether, under an express-
preemption provision, a federal agency action that otherwise lacks
the force of law preempts the requirements of state law. John Car-
son developed cancer after decades of using the popular weedkiller
Roundup. He sued its manufacturer, Monsanto Company, for fail-
ing to warn him that the product can increase users’ cancer risks.
The district court ruled that a provision of the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. § 136v(b), expressly
preempts some of Carson’s claims under Georgia law because the
Environmental Protection Agency had approved a label for
Roundup that lacked a cancer warning and the Agency classifies
Roundup’s main ingredient—glyphosate—as “not likely to be car-
cinogenic.” Carson argues that his suit is not preempted because
the relevant agency actions did not have the force of law, which he
∗ Senior Circuit Judge Tjoflat elected to participate in this decision, pursuant
to 28 U.S.C. § 46(c). Judge Jill Pryor is recused.
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21-10994 Opinion of the Court 3
characterizes as a prerequisite for express preemption. After a panel
of this Court reversed the district court, we granted rehearing en
banc to address whether a “force-of-law” analysis is relevant in this
context. We conclude that this question must be answered by re-
course to ordinary principles of statutory interpretation, and we
remand this appeal to the panel to decide whether Carson’s suit is
preempted.
I. BACKGROUND
John Carson used Roundup on his lawn for thirty years until
2016, when he was diagnosed with malignant fibrous histiocytoma,
a form of cancer. He sued Monsanto, Roundup’s manufacturer, in
the district court. He alleged that Monsanto knew or should have
known that Roundup was carcinogenic but did not warn users of
that danger. See Greenway v. Peabody Int’l Corp., 294 S.E.2d 541, 545–
46 (Ga. Ct. App. 1982) (establishing that a manufacturer must “ex-
ercise reasonable care to inform [buyers] of its [product’s] danger-
ous condition or of the facts which make it likely to be dangerous”
(citation omitted)).
Monsanto moved for a judgment on the pleadings on the
ground that a provision of the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. § 136v(b), expressly preempted Carson’s
suit and, in the alternative, that the suit was impliedly preempted
by the Environmental Protection Agency’s previous approval of
Roundup’s labeling and continued adherence to the reasoning for
that decision. The Act expressly preempts a state-law pesticide rule,
including a common-law cause of action, if it is a “requirement[]
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4 Opinion of the Court 21-10994
for labeling or packaging in addition to or different from those re-
quired under” the Act. Id.; see Bates v. Dow Agrosciences LLC, 544 U.S.
431, 443–44 (2005). Monsanto argued that because the Environ-
mental Protection Agency, which administers the Act, had declined
to require a cancer warning when it registered and continued to
approve Roundup for sale, see 7 U.S.C. § 136a(a), a Georgia-law re-
quirement of a cancer label would be “in addition to or different
from” what the Act required.
The district court agreed with Monsanto and granted judg-
ment on the pleadings in Monsanto’s favor insofar as Carson’s suit
relied on the lack of a cancer warning in Roundup’s label. Carson v.
Monsanto Co., 508 F. Supp. 3d 1369 (S.D. Ga. 2020). The district
court assumed in Carson’s favor that Monsanto failed to perform
its duty under Georgia law “to provide adequate warnings or other
clinically relevant information and data regarding . . . the [cancer]
risks associated with” Roundup. Id. at 1376. But it ruled that this
state-law requirement was expressly preempted because the Geor-
gia requirement “would be in direct conflict with the EPA’s ap-
proved label because the EPA classifies [Roundup’s active ingredi-
ent,] glyphosate[,] as ‘not likely to be carcinogenic to humans’ and
considers glyphosate products with cancer warnings to be ‘mis-
branded.’” Id. The parties reached a partial settlement, and Carson
amended his complaint to abandon the claims that were not dis-
missed.
A panel of this Court reversed. Carson v. Monsanto Co., 51
F.4th 1358 (11th Cir.), reh’g en banc granted, op. vacated, No. 21-10994,
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21-10994 Opinion of the Court 5
2022 WL 17813843 (11th Cir. Dec. 19, 2022). It determined that
Georgia’s common-law standard for product-safety warnings was
less demanding than the federal prohibition against marketing
“misbranded” pesticides. Id.at 1363 (citing7 U.S.C. § 136
(q)(1)(G);
Greenway, 294 S.E.2d at 545–46). And it held that the Agency’s ap-
proval of Roundup labels without a cancer warning, even in the
light of the Agency’s internal scientific conclusions about
Roundup’s active ingredient, did not preempt the Georgia cause of
action. Id. at 1363–65. The panel explained that because “only fed-
eral action with the force of law has the capacity to preempt state
law[,] . . . any preemption analysis of agency action in the [Federal
Insecticide, Fungicide, and Rodenticide Act] context beyond the
statute itself first requires us to do a Mead analysis.” Id. at 1362. By
“Mead analysis,” the panel referred to the question whether “the
agency [is] able to speak with the force of law when it addresses
ambiguity in the statute [it administers] or fills a space in the en-
acted law.” United States v. Mead Corp., 533 U.S. 218, 229 (2001). Be-
cause “the EPA registration process” does not have the force of law
under the Mead framework, the panel reasoned, the result of that
process could not preempt Carson’s suit. Carson, 51 F.4th at 1363–
64. The panel also rejected Monsanto’s implied-preemption theory.
Id. at 1364 n.11.
We granted Monsanto’s petition for rehearing en banc and
vacated the panel opinion. Carson, 2022 WL 17813843. We in-
structed the parties to address two questions about how a “force-
of-law” analysis applies:
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6 Opinion of the Court 21-10994
1. Can an express-preemption provision like § 136v(b)
give preemptive effect to a federal agency action that
otherwise lacks the “force of law”? Or must a review-
ing court determine, as a threshold matter, whether
federal agency action has the “force of law”?
2. How should a reviewing court identify the federal
“requirements . . . under this subchapter” to which
§ 136v(b) refers, and what role, if any, does a “force of
law” analysis play in that determination?
II. JURISDICTION
Although the parties do not dispute our jurisdiction, we have
an “independent obligation to ensure that subject-matter jurisdic-
tion exists before reaching the merits of a dispute.” Jacobson v. Fla.
Sec’y of State, 974 F.3d 1236, 1245 (11th Cir. 2020). We have statu-
tory jurisdiction because the combination of the judgment on the
pleadings and Carson’s amendment of his complaint to remove the
unresolved claims left nothing for the district court to adjudicate.
See 28 U.S.C. § 1291. We also have jurisdiction under Article III of
the Constitution despite the parties’ contingent settlement agree-
ment because this appeal is still a live controversy in which both
parties assert adverse legal positions and have a financial stake in
prevailing on appeal. See Havens Realty Corp. v. Coleman, 455 U.S. 363,
370–71 (1982); Linde v. Arab Bank, PLC, 882 F.3d 314, 318, 324–25 (2d
Cir. 2018); Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 222,
224(3d Cir. 2000); Tuepker v. State Farm Fire & Cas. Co.,507 F.3d 346
,
357 n.11 (5th Cir. 2007); United States ex rel. Roby v. Boeing Co., 302
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21-10994 Opinion of the Court 7
F.3d 637, 641 (6th Cir. 2002); John Doe 1 v. Abbott Lab’ys,571 F.3d 930
,
932–33 (9th Cir. 2009).
Our dissenting colleague contends that this appeal should
be dismissed as collusive because it lacks the “honest and actual an-
tagonistic assertion of rights,” United States v. Johnson, 319 U.S. 302,
305 (1943) (citation omitted), necessary for a justiciable “Case” or
“Controversy,” U.S. CONST. art. III, § 2. See Dissenting Op. at 1. But
we respectfully disagree. The stark contrast between this appeal
and the collusive lawsuit in United States v. Johnson proves the point.
United States v. Johnson was a no-lose proposition for a plain-
tiff, Roach, who had only a nominal role in the litigation. Roach
used a fake name to file suit under a wartime price-control statute
against his landlord, Johnson, at Johnson’s request. Johnson, 319 U.S.
at 303–04. Johnson paid all of Roach’s costs. Id. “[T]he plaintiff did
not employ, pay, or even meet, the attorney who appeared of rec-
ord in his behalf . . . .” Id. at 304. He did not even read the com-
plaint filed in his name. Id. Instead, the suit was filed at Johnson’s
instruction and maintained under his full control because he
wanted a federal court to declare the price-control statute uncon-
stitutional. Id. at 302–04. The Supreme Court condemned that
abuse of the courts and required that the suit be dismissed after the
United States intervened and presented undisputed evidence of the
collusive nature of the suit. Id. at 304–05.
In contrast, both parties have a real interest in the legal posi-
tions they advance in this appeal, and nothing in the record estab-
lishes that Monsanto controls Carson or his representation. The
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8 Opinion of the Court 21-10994
district court rejected two of Carson’s claims seeking compensa-
tion for a serious illness that he alleges Monsanto caused. He would
have reason to appeal that judgment absent any settlement agree-
ment. To be sure, Monsanto paid him to abandon his other claims
and to appeal the judgment against him, but if he wins, he receives
a larger payout than if he loses, which means that he has a stake in
this appeal. And unlike Roach, Carson has zealously asserted his
rights before this Court, and there is no suggestion that Monsanto
selected or controls his counsel.
For its part, Monsanto’s encouragement of the appeal—pos-
sibly to create a circuit split—does not deprive us of jurisdiction. In
the settlement, Monsanto secured the abandonment of several of
Carson’s potentially valuable claims. And Monsanto has an interest
in winning on appeal: it seeks the dismissal of the remaining claim
against it and is liable for a smaller settlement payment if it prevails.
If it loses the appeal, Monsanto will pay Carson more (and, inci-
dentally, no circuit split will occur). Because this appeal is not col-
lusive, we must fulfill our “virtually unflagging” “obligation to hear
and decide cases within [our] jurisdiction.” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 126 (2014) (citation and
internal quotation marks omitted).
III. STANDARD OF REVIEW
“We review a judgment on the pleadings de novo.” Cannon v.
City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). “Judg-
ment on the pleadings is appropriate where there are no material
facts in dispute and the moving party is entitled to judgment as a
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21-10994 Opinion of the Court 9
matter of law.” Id. We accept the factual allegations in the com-
plaint as true. Id.
IV. DISCUSSION
“Express preemption arises when the text of a federal statute
explicitly manifests Congress’s intent to displace state law.” MSP Re-
covery Claims, Series LLC v. United Auto. Ins. Co., 60 F.4th 1314, 1321
(11th Cir. 2023) (alterations adopted) (citation omitted); see U.S.
CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof[,] . . . shall
be the supreme Law of the Land[,] . . . any Thing in the Constitu-
tion or Laws of any State to the Contrary notwithstanding.”). Ex-
press preemption turns primarily on “the language of the pre-emp-
tion statute and the statutory framework surrounding it.” Med-
tronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (citation and internal quo-
tation marks omitted), abrogated in part on other grounds by Puerto
Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115 (2016). Where Con-
gress has enacted an express-preemption provision, we identify the
state law that it preempts according to ordinary principles of statu-
tory interpretation, and no presumption against preemption ap-
plies. See Franklin Cal. Tax-Free Tr., 579 U.S. at 125.
Under the Act, a “State shall not impose or continue in effect
any requirements for labeling or packaging in addition to or differ-
ent from those required under” the Act. 7 U.S.C. § 136v(b). So if a
state-law rule is a requirement for labeling or packaging a pesticide,
it is preempted unless “fully consistent,” Bates, 544 U.S. at 452, with
the “requirements for labeling or packaging . . . required under”
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10 Opinion of the Court 21-10994
the Act, 7 U.S.C. § 136v(b). The parties agree that Carson’s suit re-
lies on a Georgia “requirement[] for labeling or packaging.” See
Bates, 544 U.S. at 443 (holding that a common-law duty can consti-
tute a “requirement[]” of state law displaced by section 136v(b)).
The remaining question is whether Carson’s suit depends on
a state-law rule that is “in addition to or different from” the “re-
quirements . . . required under” the Act. 7 U.S.C. § 136v(b). The
parties dispute whether the Agency’s decision to register Roundup
as an approved pesticide without a cancer warning, along with the
Agency’s repeated scientific conclusions about its active ingredient,
glyphosate, establish that the “requirements . . . required under”
the Act do not include a warning about Roundup’s cancer risks.
This question must be answered by recourse to the ordinary prin-
ciples of statutory interpretation. See Franklin Cal. Tax-Free Tr., 579
U.S. at 125.
Whether the Agency has acted with the force of law with
respect to Roundup’s lack of a cancer warning is relevant to express
preemption only if the specific “language of [section 136v(b)] and
the statutory framework surrounding it” require that inquiry. See
Medtronic, 518 U.S. at 486 (citation and internal quotation marks
omitted). A “force-of-law” inquiry assesses whether an agency ac-
tion falls within the scope of the agency’s “congressionally dele-
gated authority.” Cf. Merck Sharp & Dohme Corp. v. Albrecht, 139 S.
Ct. 1668, 1679 (2019). That inquiry is usually irrelevant where Con-
gress has enacted an express-preemption provision, which
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21-10994 Opinion of the Court 11
necessarily has the force of law as a “Law[] of the United States . . .
made in Pursuance” of the Constitution. See U.S. CONST. art. VI, cl.
2.
Carson’s argument that the Supremacy Clause of the Con-
stitution, id., mandates a force-of-law analysis when interpreting
any express-preemption provision relies on inapposite implied-
preemption decisions. In the case of implied preemption, a force-
of-law inquiry is necessary to establish whether “it would have been
impossible for [the defendant] to comply with the state-law duty
. . . without violating federal law.” Wyeth v. Levine, 555 U.S. 555, 563
(2009). A conflict between a state-law rule that has the force of law
and a federal agency rule that does not have the force of law is not
the type of conflict between state and federal legal obligations that
the Supremacy Clause addresses. But this reasoning does not ex-
tend to express-preemption cases, where, as we have explained, the
meaning of the express-preemption provision—not conflicting fed-
eral and state legal obligations—triggers preemption.
Within the limits of its enumerated constitutional powers,
see U.S. CONST. art. I, §§ 8–9, Congress may define the body of law
that an express provision preempts. Our role when confronted
with an express-preemption provision is to apply the text that em-
bodies Congress’s decision. And we leave for the panel’s considera-
tion Carson’s argument that section 136v(b)’s reference to “require-
ments” compels a force-of-law inquiry as a matter of statutory in-
terpretation. We express no opinion on the answer to that ques-
tion.
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12 Opinion of the Court 21-10994
V. CONCLUSION
We REMAND this appeal to the panel for the resolution of
all remaining issues.
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21-10994 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, Concurring:
I join the Court’s opinion, but write separately with some
additional thoughts as to why this appeal presents a proper “case
or controversy” within the meaning of Article III.
After the district court dismissed Mr. Carson’s failure-to-
warn claim on federal preemption grounds, the parties entered into
a settlement agreement that set up, and provided the contours of,
Mr. Carson’s appeal. For the sum of $100,000, Mr. Carson would
dismiss his other claims with prejudice and institute an appeal of
the district court’s preemption ruling (and only the preemption rul-
ing). If he lost the appeal, he could keep the $100,000. But if he
won the appeal, Monsanto would pay him an additional sum—
more than double the original amount—as a final resolution of the
failure-to-warn claim. If Mr. Carson did not pursue his appeal, he
would have to pay Monsanto back $99,900.
In some ways, the parties’ settlement is similar to the typical
“high-low” agreement seen in civil cases at the trial court level—
before the jury has reached a verdict, the parties agree that if the
plaintiff loses, the defendant will nevertheless pay him or her a cer-
tain minimum amount (the “low” floor), and if the plaintiff wins,
the payment will be capped at a higher maximum amount no mat-
ter how large the verdict is (the “high” ceiling). See generally J.J.
Prescott, Kathryn E. Spier, & Albert Yoon, Trial and Settlement: A
Study of High-Low Agreements, 57 J. L. & Econ. 699, 700 (2014) (“A
high-low agreement is a contract in which a defendant agrees to
pay the plaintiff a minimum recovery in return for the plaintiff’s
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2 JORDAN, J., Concurring 21-10994
agreement to accept a maximum amount regardless of the out-
come of the trial.”) (citation and internal quotation marks omit-
ted). If Mr. Carson loses the preemption fight on appeal, he re-
ceives $100,000. If he wins, he gets substantially more.
Under Supreme Court precedent, the agreement between
Mr. Carson and Monsanto does not make the appeal moot. The
agreement generally liquidates the damages sought by Mr. Carson
depending on the outcome of the appeal but does not resolve the
parties’ legal dispute about preemption. See Nixon v. Fitzgerald, 457
U.S. 731, 743–44 (1982); Havens Realty Corp. v. Coleman,455 U.S. 363
,
370–71 (1982).
The agreement is, however, a bit peculiar. As noted, it basi-
cally forces Mr. Carson to file and pursue an appeal of the preemp-
tion ruling in order to receive the $100,000. And it prevents him
from appealing any other issues. It seems to me that Monsanto—
the prevailing party below—is the “driving force” behind the appeal
in an effort to create a circuit split on the matter of preemption. I
can therefore see why Judge Wilson is concerned. Cf. James E.
Pfander & David R. Pekarek Krohn, Interlocutory Review by Agree-
ment of the Parties: A Preliminary Analysis, 105 Nw. U. L. Rev. 1043,
1085 (2011) (“In cases in which the parties enter into settlement
agreements, conditionally resolving their dispute subject to the ap-
pellate court’s resolution of an outstanding issue, justiciability is-
sues might appear especially acute.”). Nevertheless, I conclude that
there is no “case or controversy” problem under Article III.
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21-10994 JORDAN, J., Concurring 3
First, it seems to me that there is “an actual controversy,”
and that there remain “adverse interests.” Lord v. Veazie, 49 U.S. 251,
255 (1850). Mr. Carson has always maintained that his failure-to-
warn claim is not preempted. In the normal course of events, one
would expect a personal-injury plaintiff in his position to appeal if
his state-law tort claim was dismissed on federal preemption
grounds. So the agreement’s requirement that Mr. Carson appeal
in order to secure the $100,000, while admittedly odd, is not con-
stitutionally problematic. Things would be different if Monsanto
tried to control (or limit) the precise legal theories or arguments
that Mr. Carson could present on appeal regarding preemption. See
Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer, & David
L. Shapiro, Hart and Wechsler’s The Federal Courts and the Fed-
eral System 96 (7th ed. 2015) (“In principle it is easy to see why an
important constitutional issue should not be determined in a pro-
ceeding in which one nominal party has dominated the conduct of
the other.”). But that is not what is going on here. And although
the Supreme Court “has not spoken expansively on what makes
parties legally adverse,” William K. Kelley, The Constitutional Di-
lemma of Litigation Under the Independent Counsel System, 83 Minn. L.
Rev. 1197, 1212 (1999), I think there is sufficient adversity. Mr. Car-
son maintains that he suffered harm due to Monsanto’s conduct
and continues to seek damages for his alleged injuries—damages
which will increase if he is successful on appeal. Monsanto, for its
part, seeks to defend the victory it secured in the district court on
the failure-to-warn claim, and wants to limit its ultimate exposure
to Mr. Carson.
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4 JORDAN, J., Concurring 21-10994
Second, to the extent that the settlement agreement consti-
tutes Monsanto’s strategy for trying to create a circuit split, that is
also not fatal under Article III. Individual, institutional, and corpo-
rate litigants sometimes engage in certain conduct in order to tee
up test cases on novel questions of law. As long as Article III justi-
ciability concerns are satisfied, the federal courts have the authority
to decide such test cases. See, e.g., Evers v. Dwyer, 358 U.S. 202, 204
(1958) (allowing challenge to state laws requiring segregated seat-
ing on public buses: “That the appellant may have boarded this par-
ticular bus for the purpose of instituting this litigation is not signif-
icant.”); Ralph C. Chandler, Richard A. Enslen, & Peter G.
Renstrom, Constitutional Law Deskbook § 8:106 (Aug. 2022 up-
date) (“Test cases have often been used to raise certain issues and
satisfy the demands of the standing requirement.”).
Third, some of our sister circuits have adjudicated appeals
involving similar settlement agreements without finding any Arti-
cle III problems. See, e.g., Linde v. Arab Bank, PLC, 882 F.3d 314, 322,
324–25 (2d Cir. 2018); John Doe I v. Abbot Laboratories, 571 F.3d 930,
932–33 (9th Cir. 2009); Tuepker v. State Farm Fire & Cas. Co., 507 F.3d
346, 357 n.11 (5th Cir. 2007); Keefe v. Prudential Prop. & Cas. Ins. Co.,
203 F.3d 218, 200, 222–24 (3d Cir. 2000). Their decisions make sense
to me, and I find them persuasive. “As long as the parties have an
adequate financial incentive to pursue their opposing views of the
issue on appeal, continued litigation at the appellate court level
does not appear to threaten the requirement of adversary presen-
tation.” Pfander & Krohn, Interlocutory Review by Agreement of the
Parties, 105 Nw. U. L. Rev. at 1088.
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21-10994 WILSON, J., Dissenting 1
WILSON, Circuit Judge, Dissenting:
The majority provides a thorough and well-reasoned analy-
sis of the force-of-law issues in this appeal. However, I believe that
the parties’ settlement agreement abuses this court’s process, so
this appeal should be dismissed as non-justiciable. The Monsanto
Company, which prevailed below, paid $100,000 to Carson, not to
resolve this litigation, but to ensure it reached our court. 1 The
agreement required—not merely permitted—Carson to file a notice
of appeal challenging the district court’s preemption decision. It
required—not merely permitted—Carson to fully prosecute this ap-
peal or face forfeiture of nearly the entire $100,000 payment. This
agreement usurped Carson’s role as master of his own appeal and
placed the course of this litigation “under the domination of” Mon-
santo, depriving it of an “‘honest and actual antagonistic assertion
of rights’ to be adjudicated.” United States v. Johnson, 319 U.S. 302,
305 (1943). Because this case lacks the “indispensable” adversarial
character necessary for our jurisdiction, it is our duty to dismiss this
appeal. Id. Since we do not, I respectfully dissent.
This court’s power under the Constitution is limited to ac-
tual cases or controversies. U.S. Const. art. III, § 2; see Arizonans for
Off. Eng. v. Arizona, 520 U.S. 43, 64 (1997). And we are obligated to
ensure that the case or controversy remains “extant at all stages of
review.” Arizonans, 520 U.S. at 67; see also In re Grand Jury Subpoena,
1 The parties were granted leave to file their settlement agreement under seal
in this court. Because it remains under seal, I reference only the publicly avail-
able facts regarding it.
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2 WILSON, J., Dissenting 21-10994
FGJ-21-01-MIA, 58 F.4th 1232, 1233 (11th Cir. 2023) (“We are obli-
gated to review our appellate jurisdiction sua sponte ‘whenever ju-
risdiction may be lacking.’”). In addition to traditional standing and
mootness concerns, we must be watchful of “friendly,” “feigned,”
and “collusive” lawsuits that lack the necessary adversarial charac-
ter. See Flast v. Cohen, 392 U.S. 83, 100 (1968).
Recall that the district court entered judgment on the plead-
ings against Carson on his failure-to-warn theory, holding that it
was preempted by 7 U.S.C. § 136v(b), but did not rule on Carson’s
design defect and negligence theories. At that point, Monsanto and
Carson entered—what they describe as—a “high-low” settlement
agreement. The public details of the agreement consist of the fol-
lowing: (1) Carson filed a consent motion to amend his complaint,
removing the design defect and negligence theories and leaving
only the failure-to-warn theory; (2) Carson promised to file a notice
of appeal regarding the failure-to-warn theory and to fully pursue
that appeal in this court; (3) In return, Monsanto paid Carson
$100,000 up-front and promised him a significant—but confiden-
tial—additional sum if Carson obtains a favorable ruling in this ap-
peal; and (4) If Carson elects to dismiss this appeal or otherwise fails
to fully prosecute it, he must pay $99,900 of the $100,000 back to
Monsanto. 2
2 The $100 discrepancy is because the agreement allocates $100 of the $100,000
as consideration for the confidentiality of the agreement.
USCA11 Case: 21-10994 Document: 163-1 Date Filed: 07/10/2023 Page: 19 of 22
21-10994 WILSON, J., Dissenting 3
Agreements such as this raise troubling questions about
both the adversariness of the parties and whether the judiciary can
provide meaningful relief to the parties after their agreement to
settle. Despite Monsanto’s arguments, this agreement is unlike the
so-called “high-low” arrangements the Supreme Court approved in
Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982) and Nixon
v. Fitzgerald, 457 U.S. 731 (1982). In Havens, the parties agreed after
the Court of Appeals rendered its decision, but before the Supreme
Court granted certiorari, that the respondents-plaintiffs would re-
ceive $400 if they prevailed before the Supreme Court and $0 if
they did not. Havens, 455 U.S. at 370–71. The Court held the case
was not moot because the settlement agreement was contingent
on the final approval of the district court, and because it “would
merely liquidate [petitioners’] damages.” Id. at 371. In Nixon, the
petitioner paid the respondent $142,000 and promised a further
$28,000 if respondent was successful on appeal. Nixon, 457 U.S. at
743–44. Similar to Havens, the agreement was entered into after
the judgment of the Court of Appeals, but before the Supreme
Court granted certiorari. Id. And again, it was the petitioner—the
losing party below—who promised to pay more money if the op-
posing party prevailed on appeal, in effect liquidating their dam-
ages. Id. at 744.
Here, Monsanto—the prevailing party below—is the one
paying for this appeal. It is Monsanto who is driving this appeal
forward. Rather than an honest attempt to liquidate damages and
avoid the uncertainty of further litigation, this arrangement seeks
to create it. This agreement appears to be nothing more than an
USCA11 Case: 21-10994 Document: 163-1 Date Filed: 07/10/2023 Page: 20 of 22
4 WILSON, J., Dissenting 21-10994
attempt by Monsanto to seek a favorable appellate decision in con-
flict with the Ninth Circuit’s decision in Hardeman v. Monsanto Com-
pany, 997 F.3d 941 (9th Cir. 2021) (finding plaintiffs’ failure-to-warn
claims not preempted by 7 U.S.C. § 136v(b)). 3
Further, this agreement is unlike the agreements described
in the decisions collected in Judge Jordan’s concurrence. Jordan
Concurring Op. at 4. None of those cases involved a situation
where the prevailing party paid the losing party to file the appeal
and fully prosecute it. See Linde v. Arab Bank PLC, 882 F.3d 314, 322
(2d Cir. 2018) (noting appeal brought by defendant after losing at
trial); John Doe 1 v. Abbott Labs., 571 F.3d 930, 932 (9th Cir. 2009)
(noting appeal brought by defendant after losing motion to dis-
miss); Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 222 (3d
Cir. 2000) (noting appeal brought by defendant after losing partial
summary judgment); Tuepker v. State Farm Fire & Cas. Co., 507 F.3d
3 See Oral Argument at 14:40–14:58, Carson v. Monsanto Co., No. 21-10994 (June
13, 2023) (en banc), https://www.ca11.uscourts.gov/oral-argument-record-
ings.
Judge Wilson: “Why would Monsanto pay you, your client, $100,000
in exchange for filing the appeal and then give you more money if you
win, if for any reason other than to create a circuit split?”
Counsel for Carson: “I cannot think of a reason.”
Monsanto’s parent company, Bayer AG, has stated its intention of seeking a
circuit split to facilitate Supreme Court review of the preemption issues in this
case. See Five-Point Plan to Close the Roundup™ Litigation, BAYER,
https://www.bayer.com/en/roundup-litigation-five-point-plan
[https://perma.cc/6YT2-DSNU] (archived on June 15, 2023).
USCA11 Case: 21-10994 Document: 163-1 Date Filed: 07/10/2023 Page: 21 of 22
21-10994 WILSON, J., Dissenting 5
346, 350 (5th Cir. 2007) (noting appeal brought by both parties un-
der 28 U.S.C. 1292(b) certification procedure after defendant’s mo-
tion to dismiss was denied). I would agree that an honest attempt
to liquidate damages in an agreement that “represent[s] the parties’
efforts reasonably to estimate the plaintiffs’ ability ultimately to
procure the ‘relief upon which the suit was originally premised,’”
Linde, 882 F.3d at 325, is valid under the Supreme Court’s prece-
dents. But respectfully, I think the particular terms of this agree-
ment do not meet that standard.
Finally, the promised payment contingent on the outcome
of this appeal does not solve the problem. Cf. Moore v. Harper, 600
U.S. ---, ---; No. 21-1271 (2023) (Thomas, J., dissenting) (slip op. at
16) (“But as should be obvious, such a trigger provision cannot be
the entire basis of an Article III case or controversy.”). Carson’s
claims in this case were resolved by the settlement agreement be-
fore this appeal was filed. He was paid to drop two of his claims,
and even if he prevails on this appeal, the parties have already
agreed to dismiss his failure-to-warn claims on remand. This liti-
gation continues before this court only due to the friendly and col-
lusive nature of the settlement agreement which paid Carson to file
this appeal and requires him to maintain it.
* * *
Unquestionably, parties are free to strategize around when
and which decision they will appeal in order to make an “honest
and actual antagonistic assertion of [their] rights.” Johnson, 319 U.S.
at 305. However, in my view, when a victorious, deep-pocketed
USCA11 Case: 21-10994 Document: 163-1 Date Filed: 07/10/2023 Page: 22 of 22
6 WILSON, J., Dissenting 21-10994
party pays his adversary to file an appeal, the manufactured contro-
versy that results “tarnishes the integrity of the judicial process.”
Id. In situations like this, to guard ourselves against ruling on hy-
pothetical controversies and the temptation to issue advisory opin-
ions, the Supreme Court instructs that we should dismiss this ap-
peal. See Flast, 392 U.S. at 100; Johnson,319 U.S. at 305
.
On remand, I urge the panel to scrutinize the agreement in
this case and assure itself that a live case or controversy remains
extant. For these reasons, I respectfully dissent.
Reference
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