Welcome to Critical Mass, Law.com's new briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. Today, a judge in Washington D.C. is set to hear motions to dismiss wrongful death lawsuits brought over Malaysian Airlines Flight 370. Bayer cites plaintiffs' use of the hashtag '#killinnazis' in its attempt to toss last month's Xarelto verdict. Also, the U.S. Supreme Court takes another swing at its American Pipe holding in securities class actions.

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Flight 370 Dismissals Up in the Air

 

A federal judge in Washington D.C. is set to hear arguments on Tuesday over whether to dismiss lawsuits brought by the families of about 70 passengers of Malaysian Airlines Flight 370, which disappeared over the Indian Ocean in 2014. Here's my story.

Malaysian Airlines and Boeing, maker of the 777 aircraft, have raised a host of defenses, but what's most interesting is the differences of opinion going on among the plaintiffs firms. Podhurst Orseck's Steve Mark, a veteran airplane crash litigator, has cited exceptions to the 1999 Montreal Convention, an international treaty that generally prohibits foreign passengers from suing foreign airlines in U.S. courts.

But Motley Rice's Mary Schiavo, the former U.S. Department of Transportation inspector general, has taken the unusual move of suing Allianz, the insurer of Malaysian Airlines, which reorganized its corporate structure after Flight 370's disappearance. She's citing Article 32 of the Montreal Convention, which states: “In the case of the death of the person liable, an action for damages lies in accordance with the terms of this convention against those legally representing his or her estate.”

Only, in this case, Malaysian Airlines is the dead “person” whose legal representative is now Allianz.

We'll see if that theory flies.

 

Xarelto Defense Motion Cites '#killinnazis' 

 


U.S. District Judge Eldon Fallon last week denied the plaintiffs' motion for new trial in a case over blood thinner Xarelto, which ended in the third defense verdict in the multidistrict litigation in Louisiana. Plaintiffs attorneys in the first two trials have appealed similar denials to the 5th Circuit.

Meantime, defendants Bayer and Janssen Pharmaceuticals have filed their own post-trial motion after losing a nearly $28 million verdict over Xarelto in Pennsylvania state court. Here's my colleague Max Mitchell with that update.

According to that motion, members of the plaintiff's trial team used the hashtag “#killinnazis,” indicating that they were engaged in a “premeditated plan” to link Bayer–whose global headquarters is in Germany–with Nazis. Bayer's North American headquarters is in New Jersey.

Plaintiffs' counsel have countered that the posts have been taken out of context, and were never seen by jurors.

 

American Pipe Déjà Vu for SCOTUS?

 

The U.S. Supreme Court has taken up another case involving the timing of securities class actions.

China Agritech Inc. v. Resh would appear to have much in common with a case the Supreme Court decided in June called California Public Employees' Retirement System v. ANZ Securities. In the CalPERS case, the court barred securities class actions from being filed once a three-year statute of repose had lapsed.

In both cases, plaintiffs have turned to 1974 Supreme Court decision in American Pipe & Construction v. Utah, which found that individual class members who wanted to opt out of a class action could bring their own cases past the deadline. It's been an important tool for large institutional investors that can bring their own individual cases. But the Supreme Court ruled in CalPERS v. ANZ that American Pipe did not apply because the 1974 case dealt with the statute of limitations, not a statute of repose.

Also, circuit courts are currently split as to whether American Pipe applies to both individual and class claims.

I checked in with Susan Saltzstein at Skadden Arps, who is following both cases.

“One impact of adopting a broader allowance for tolling of class claims is the real threat of serial class action filings even where a district court has denied plaintiff's class certification motion,” she told me. “In Resh, class certification had been twice denied before another plaintiff pursued a third attempt.”

 

Here's what else you need to know today:

Parallel Tracks: Monday's derailment of an Amtrak train south of Seattle that killed three people and injured more than 100 drew comparisons to the Philadelphia crash in 2015. That crash killed eight and injured more than 200. Attorney Robert Mongeluzzi, of Saltz, Mongeluzzi, Barrett & Bendesky, who represented 34 victims of the 2015 crash, told MyNorthwest.com that Monday's derailment was “virtually identical” to the Philadelphia crash, over which Amtrak last year paid $265 million to settle lawsuits.

Appealing Lead Paint: Three lead paint companies are now looking to the California Supreme Court to overturn a judgment that once stood at $1.15 billion. A California appellate court upheld the result of the last month, but cut the estimated damages award closer to $400 million. The panel refused to rehear the case on Dec. 6. According to the U.S. Chamber of Commerce's Institute for Legal Reform, the paint companies could petition the California Supreme Court as early as Dec. 26.

Taking the Wheel in MDLs: Judges in California have appointed lead counsel in two closely watched multidistrict litigation dockets — and it's mostly men running the show again, despite calls to diversify MDL steering committees. On Dec. 14, U.S. District Judge Charles Breyer named Bruce Simon of Pearson, Simon & Warshaw lead counsel in an antitrust MDL against several German automakers brought in the wake of the Volkswagen emissions scandal — with Warren Burns of Burns Charest co-lead counsel in charge of the direct purchasers. On Dec. 11, U.S. District Judge Andrew Guilford in Santa Ana named Robins Kaplan (Roman Silberfeld) and Baron & Budd (Roland Tellis) to spearhead litigation over Wells Fargo's sales practices.