Welcome to Critical Mass, Law.com's new briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. Today, I've got some feedback on a 9th Circuit decision that could be a “major blow” to national class action settlements. Also, why did Adam Moskowitz leave his firm of 25 years to open his own shop? And there's another talc trial next week — find out what it's about.

Send your feedback to [email protected], or find me on Twitter: @abronstadlaw

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Hyundai Case Roils Class Action Practice

The blogosphere and legal Twitter lit up this week after the 9th Circuit came out with this 2-1 opinion, captioned In re Hyundai and Kia Fuel Economy Litigation, which could make it much harder to get class action settlements approved — or, as dissenting Judge Jacqueline Nguyen put it, “deals a major blow to multistate class actions.” Here's my story on the decision.

There's much debate over the impact of the ruling, which vacated certification of a 2015 class action settlement with Hyundai and Kia after finding the district judge failed to conduct a choice-of-law analysis when approving the deal. It's a big deal because differences among various state laws that could defeat commonality in a class action usually come up at the class certification stage, not at settlement, when everyone, including the judge, wants to resolve the matter. Here's what some experts had to say:

˃ In his Class Action Countermeasures blog, Andrew Trask at McGuireWoods said there could be a backlash, particularly given that the opinion's author, Judge Sandra Ikuta (an appointee of President George W. Bush) is “politically an outlier in the Ninth Circuit.” Trask pointed out that, in 2007, Ikuta wrote the dissent in Dukes v. Wal-Mart Stores Inc. that heavily influenced the Supreme Court's ultimate opinion in that case. Trask said “the likelihood of an en banc opinion overruling [the panel decision in Hyundai] is higher than normal.” In an email, he told me an en banc review could come from either side since the defense bar is “torn” over the issue and the decision “appears to drop a bomb” on a standard practice.

˃ Seyfarth Shaw's Gerald Mattman, author of the Workplace Class Action Report, told me: “I expect the defense bar to cite the ruling in opposing certification in non-settlement contexts too. Given that certification standards for settlement purposes are often thought to be more relaxed, it is a solid argument point for defendants facing these sorts of sprawling class actions.”

And not just for defendants. On Wednesday, the state of Massachusettscited the Hyundai decision in a brief before the 8th Circuit (see the brief here). It's one of 10 states objecting to a class action settlement with Remington over allegedly defective rifles.

 

Moskowitz Discusses New Beginnings

After 25 years, it might not be too surprising that plaintiffs' attorney Adam Moskowitz has decided to leave Kozyak Tropin & Throckmorton to start his own firm — but his reason might surprise you.

“Three years ago, I just stopped drinking alcohol because I couldn't handle it. It was a decision I had to make where I had to take responsibility for my life because I have three children, a wife and a career I love,” he told me. Now, he said, he was “properly equipped” to go off on his own.

Here's Law.com's story on his new firm, The Moskowitz Law Firm in Coral Gables, Florida. Moskowitz has settled more than 30 nationwide class action cases against banks and insurers, and he's co-lead counsel in the multidistrict litigation in New Jersey over FieldTurf.

“I just needed to make the jump,” he told me. “It's scary. I've lost sleep. Not that it's easy, but it's exciting, because it's something I'm going to build with my new traditions — my healthy traditions.”

 

Next Talc Trial Is on J&J's 'Home' Court

Johnson & Johnson is set to go to trial a second time over claims that its baby powder caused someone to get mesothelioma — only this time, the New Jersey-based pharmaceutical firm has the home field advantage. Here's Law.com's Charles Toutant with a preview on the trial, which is set to start on Jan. 29 in New Jersey's Middlesex County Superior Court.

A quick backgrounder: This trial is not about ovarian cancer, over which juries have awarded eight-digit verdicts. This is more like the trial in Los Angeles Superior Court that ended with a defense verdict on Nov. 16.

Plaintiff Stephen Lanzo is represented by Levy Konigsberg, and Johnson & Johnson is represented by Drinker Biddle & Reath and Kirkland & Ellis.

NLRB Says 'Me Too' in Class Action Waiver Case

What does the #MeToo movement have in common with a case before the U.S. Supreme Court involving class action waivers? They both deal with “strength in numbers,” former National Labor Relations Board general counsel Richard Griffin said this week at a panel hosted by Bloomberg Law. Here's Law.com's Erin Mulvaney with that story. In October, Griffin argued before the Supreme Court in the case, which addressed whether workplace arbitration agreements that ban class actions violate the National Labor Relations Act. “What happens here if you require people to sue individually is that they don't do it at all,” he said this week.

Here's what else you need to know today:

Staying Afloat: The Michigan Court of Appeals has refused to dismiss a class action brought over the Flint water contamination crisis. Here's my story. This case was filed in the Michigan Court of Claims, which hears tort lawsuits against the state. Plaintiffs attorney Michael Pitt said the decision would “open the courthouse doors” for hundreds of other Flint claims.

More Mudslide Lawsuits: A class action was filed this week against Southern California Edison over the recent Thomas Fire and mudslides in Southern California. It's not the first case to be brought (see my story here), but it's notable who the firms are: Keller Rohrback has an office in Santa Barbara, where mudslides killed at least 20 people, and San Francisco's Lieff Cabraser and Santa Barbara's Capello & Noël spearheaded litigation over a 2015 oil spill off the coast of Santa Barbara.

Squeezed Out: Raise a glass to Gibson, Dunn & Crutcher for defeating class certification in multidistrict litigation over Tropicana's claims that its Pure Premium orange juice is “100 percent pure and natural.” Here's Law.com's story. U.S. District Judge William Martini in New Jersey cited the plaintiffs' own evidence (Carella Byrne and Seeger Weiss) in concluding that not everyone bought the orange juice for the same reason. “In fact,” the judge wrote, “the named plaintiffs' own testimony shows quite the opposite.” And then there was the sticky problem of finding prospective class members. Martini wrote this about the plaintiffs' expert: “The court does not doubt his ability to write computer programs, but even he admits that the performance of his program will only be as good as the consumer data he puts into it.”