Welcome to Critical Mass, Law.com's new briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. This week, lawyers are watching to see whether the U.S. Supreme Court could finally take up the vexing issue of standing in data breach class actions. Meanwhile, lawyers for air bag plaintiffs said a trust in Takata's bankruptcy could fetch and distribute $130M — better than nothing, considering the company is in Chapter 11. The outgoing No. 3 official at the Justice Department, Rachel Brand, told a conservative legal group AG Jeff Sessions could order that more class action settlements be reviewed. And Elizabeth Cabraser helps fund a new consumer law center at Berkeley.

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Data Breach Standing on SCOTUS Docket?

Could the U.S. Supreme Court finally take up the question of whether data breach victims have standing to sue in federal court?

Lawyers are closely watching whether the high court takes up a petition to review a U.S. Court of Appeals for the D.C. Circuit decision last year in Attias v. CareFirst, which reinstated a case after concluding that the plaintiffs had “plausibly alleged a risk of future injury that is substantial enough to create Article III standing.” Many data breach class actions have been tossed on standing grounds, concluding that the victims weren't harmed.

Who's involved: Matt Gatewood (Eversheds Sutherland) filed the petition for CareFirst, and Christopher Nace (Paulson & Nace) responded for plaintiffs.

I checked with Craig Newman, head of the privacy and data security practice at Patterson Belknap, who wrote this contributing article for law.com. He told me:

“The issue of standing in data breach cases has caused a split at the federal appellate court level, although the cases are nuanced and have different factual allegations. The CareFirst case raises the issue of whether victims of a data breach can assert claims for the risk of harm due to the potential misuse of information obtained through a hack.”

But here's why the Supreme Court might not decide to review CareFirst: It denied a petition to review a similar standing issue in Robins v. Spokeo.

We might find out the Supreme Court's decision soon: CareFirst was scheduled to be distributed for conference on Friday.

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Takata Trust Deal 'Better Than Nothing'

A revised Chapter 11 bankruptcy plan for Takata was set to go before a judge on Friday after plaintiffs lawyers reached a settlement that could offer as much as $130 million to victims of exploding air bags. Plaintiffs lawyers said the deal was better than nothing, according to my report. Here is my colleague Roy Strom's coverage of the plan.

Under the settlement, 13 automakers would drop some of their creditor claims against Takata to set up the trust. Honda, the automaker with the largest liability, also would pay claims but bar plaintiffs from pursuing cases in court. Lawyers said their clients would continue to sue the other automakers.

Wait. What about that $1B plea deal? Yes, there is a $125 million victim fund set up under the plea deal Takata reached last year with the DOJ. But there's a catch: A special master predicted that claims against Takata could exceed $125 million – by a lot. In a January court filing (read it here), he predicted that the total might be between $710 million and $1.5 billion.

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Feds Plan More Scrutiny of Class Settlements

U.S. Attorney General Jeff Sessions plans to review more class action settlements. That's according to Associate Attorney General Rachel Brand, who spoke to members of the Federalist Society on Thursday. My colleague Cogan Schneier's article (see here) says Brand discussed a 2005 Class Action Fairness Act provision requiring that certain officials, including the U.S. attorney general, be notified about class action settlements at least 90 days before they are entered in court.

She said the DOJ gets 700 notices a year but has gotten involved in only two cases. Brand, who has announced she is leaving the agency to be head of global corporate governance for Walmart, blamed “an almost comical story of government bureaucracy” for the lack of involvement: CAFA notices get held up in the DOJ mailroom. But things are improving, she said.

Then she threw out this teaser: “Be on the lookout in the coming days for the first example.”

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Pioneering Consumer Law Teaching

Prominent plaintiffs attorney Elizabeth Cabraser of San Francisco's Lieff Cabraser has donated $3.5 million to establish the new center on consumer law at the University of California, Berkeley School of Law. Law.com's Karen Sloan has the news.

According to Berkeley officials, the Berkeley Center for Consumer Law and Economic Justice will be the first consumer law center housed at a top tier law school.

So why aren't there more consumer law centers? Karen told me that “consumer law is a bit amorphous. It's hard to pin down, exactly, what it encompasses. You don't really have that problem when you're teaching employment law or First Amendment law, which are more clear cut.”

Who Got the Work?

The family of actor Bill Paxton has brought in personal injury lawyers Bruce Broillet and Steve Heimberg to sue the hospital where he died last year after heart surgery. Here's the lawsuit against Cedars-Sinai Medical Center and the heart surgeon.

Heimberg, of Heimberg Barr in Los Angeles, happens to also be a doctor, and Broillet, of Greene Broillet & Wheeler in Santa Monica, California, is the lawyer who got a $55 million jury verdict in 2016 for Fox Sports reporter Erin Andrews in her privacy case against Marriott.

And here's a bit more, as you head into a long weekend:

About That Equifax Probe: President Donald Trump's four nominees for the Federal Trade Commission appeared at U.S. Senate confirmation hearings this week — and the Equifax data breach was definitely on senators' minds. Here's Law.com's coverage. The nominees acknowledged the FTC's investigation into the hack, even as the Consumer Financial Protection Bureau, according to this Reuters report, was dialing back its own probe. CFPB chief Mick Mulvaney denied those reports Tuesday at a Senate panel hearing, saying “there has been no change in the position from the previous leadership of the CFPB regarding Equifax.”

Rifle Ruffling: The 8th Circuit took up the hotly debated topics of class notices and claims rates this week in an appeal over a class action settlement involving allegedly defective Remington rifles. Here's my story on how the panel appeared to question whether low claims rates necessarily meant there were problems with the notices. Check out the oral arguments. There's some good give-and-take on electronic notices, and why some gun owners might not have wanted to make a claim.

Brushed Off: The California Supreme Court has refused to take up a petition to overturn a $1.15 billion judgment against three lead paint companies. Law.com's report (see here) says that Wednesday's decision leaves in place an appeals court decision last November (see here) that found Sherwin-Williams, NL Industries and ConAgra were liable for lead paint exposure — but reduced possible abatement costs to about $400 million.

But it's not over yet: The paint companies plan to petition the U.S. Supreme Court to overturn what NL Industries attorney Andre Pauka (Bartlit Beck) called an “unprecedented expansion of public nuisance law.”