Welcome to Critical Mass, Law.com's new briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. U.S. Attorney General Jeff Sessions' announcement this week about the DOJ getting involved in the opioid litigation comes as the department was ordered to turn over DEA data to plaintiffs lawyers. Find out more about one of the lawyers leading the Equifax lawsuits on behalf of banks. And Yahoo added a law firm to its defense team ahead of a critical hearing in the data breach litigation.

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

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Sessions Eyeing DOJ Role in Opioid Case

The U.S. Department of Justice announced this week it's preparing to jump into the legal fray over the opioid crisis. Law.com's Max Mitchell wrote this story about the DOJ's new litigation-oriented task force that U.S. Attorney General Jeff Sessions announced would consider pursuing legal action against opioid manufacturers and distributors. Here's the statement of interest the DOJ filed in the multidistrict litigation in Ohio, where U.S. District Judge Dan Polster has ordered both sides to immediate settlement talks.

But the DOJ's already involved in the MDL. On Feb. 22, DOJ Chief of Staff Alex Haas and five other federal government lawyers met in Washington D.C. with defense attorneys and plaintiffs lawyers, who want access to a database maintained by the U.S. Drug Enforcement Administration – officially called the Automated Records and Consolidated Orders System (ARCOS) database. Polster ordered the talks. On Feb. 26, one day before Sessions announced the department's opioid initiatives, the DOJ authorized some of the data to be turned over – though with limitations (see this DOJ letter).

So what's in this database? Attorney Richard Fields of Washington D.C.'s Fields PLLC, who represents the Attorney General of the Cherokee Nationin its opioid suit, said the database is “at the crux” of the lawsuits.

“It's essentially all of the shipment data for the entire country over a decade or more,” he said. “It's not just important for purposes of legal liability but for stopping the epidemic. While people are still addicted, if you stop the illegal flow of drugs, it becomes much harder to get addicted. So that is really the goal here.”

 

Lawyers Banking on Equifax Litigation

Equifax's data breach just got worse this week (see Law.com's story here), with 2.4 million more customers being impacted. The total now stands at 148 million. But it's not just customers impacted: More than 70 banks and other financial institutions have sued over Equifax. And Gary Lynch of Carlson Lynch Sweet Kipela & Carpenter is co-lead counsel in their cases. He's built a niche practice representing banks in data breaches: Check out this Q&A with Lynch by Law.com's Lizzy McLellan.

One great thing about representing banks in data breaches is not having the same standing hurdle that's plagued consumers.

Lynch told me:

“Generally, financial institutions incur actual damages when either payment card data or customers' personally identifiable information is compromised because, among other things, they incur significant costs in taking steps to reduce their risks and manage the breach on behalf of their customers. Article III standing is not an issue.”

 

Missouri Justices Sift Talc Arguments

The Missouri Supreme Court heard oral arguments this week in the latest talcum powder case that Johnson & Johnson is trying to transfer out of St. Louis, where juries have come out with multimillion-dollar verdicts for ovarian cancer victims. My story covered those arguments.

The case: Michael Blaes sued after his wife, Shawn Blaes, died from ovarian cancer in 2010. But it's clear Johnson & Johnson isn't focused on just the Blaes case. “Mr. Blaes is one of hundreds of plaintiffs with no business in St. Louis City who have nevertheless brought their claims there,” Johnson & Johnson attorney Thomas Weaver of Armstrong Teasdale wrote in his opening brief.

Oh, and by the way: Weaver is the same lawyer who got the first talc verdict of $72 million reversed on appeal in October (see here).

 

Who Got the Work?

A high-profile team from Gibson, Dunn & Crutcher led by Ted Boutrous has stepped in to assist Yahoo in multidistrict litigation over its massive data breach. Here's the story from my colleague Ross Todd. In addition to Boutrous, the team includes Joshua Jessen, Michael Li-Ming Wong and Rachel Brass, who entered their appearances this week. Yahoo has been represented by Hunton & Williams partner Ann Marie Mortimer.

Boutrous told me: “Our firms have a long history of collaborating together and working with Yahoo.”

So why add heft to the team? It could be that Yahoo faces a fast-approaching March 8 hearing on its second motion to dismiss the litigation. Last August, U.S. District Judge Lucy Koh refused to grant Yahoo's dismissal motion, writing: “All plaintiffs have alleged a risk of future identity theft, in addition to loss of value of their personal identification information.”

Here's what else you need to know as we head into the weekend:

Facebook Fail: A federal judge in California denied Facebook's move to have class actions dismissed under Spokeo v. Robins that were brought over its photo tagging feature. Here's Law.com's story. U.S. District Judge James Donato found that the plaintiffs had alleged concrete violations of their privacy rights. He based much of his ruling on the Illinois Biometric Information Privacy Act – the same law that kept Illinois residents from enjoying Google's art selfies earlier this year.

Coin Flip: Talk about a case dismantled by the Bristol-Myers decision! In December, a federal judge in Illinois threw out two out of the four named plaintiffs in a class action over failed bitcoin exchange Mt. Gox, citing the U.S. Supreme Court's Bristol-Myers Squibb v. Superior Court of Californialast year. So plaintiffs firm Edelson (Jay Edelson's firm in Chicago) filed two more suits on their behalf — then asked the MDL panel to coordinate all three cases. Here's my coverage. Mt. Gox is bankrupt, but the Japanese bank named as a defendant (repped by Jerome Fortinsky of Shearman & Sterling) filed court papers this month opposing the MDL.

Accounting Class: A federal judge in California hasn't yet ruled on whether to certify a class of PricewaterhouseCoopers applicants suing for age discrimination. U.S. District Judge Jon Tigar had a lot of questions for the plaintiffs lawyers (Outten & Golden) but suggested they'd likely get another chance to make their case. Here's Law.com's update. PwC's attorneys (Kirkland & Ellis) have said an on-campus recruiting program to hire straight out of college didn't mean its policies were discriminatory.

Out of Luck: A class action was filed on behalf of participants of the 2017 World OutGames, a 10-day event in Miami Beach, Florida, last year that was supposed to showcase LGBTQ athletes from 59 countries. According to Law.com's story (see here), thousands of participants learned within hours that the organizers had botched spending and canceled many of the events. Marc Wites of the Wites Law Firm in Florida and Darin Beffa of Beffa Law in California filed the case.

Here's why this may sound familiar: At least four class actions have been filed over last year's Fyre Festival, in which participants who paid $12,000 each for private luxury villas ended up staying in tents with outdoor toilets in the Bahamas.

“It's sort of a strikingly similar situation,” Beffa told Law.com.

One final note to my readers:

Oops! In Tuesday's dispatch, I misspelled the name of Patricia “Trish” Carreiro's law firm in my segment on the U.S. Supreme Court rejecting the CareFirst cert petition. It should have been Axinn, Veltrop & Harkrider.