Welcome to Critical Mass, Law.com's new briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. All eyes are on Florida, where the state's highest court is reviewing evidence standards, weighing whether it should shift from Frye to Daubert in evaluating expert testimony. The U.S. Justice Department asked the U.S. Supreme Court to reject a petition to review cy pres–no matter how “regrettable” the payments may be. And AG Jeff Sessions' announcement last week that the feds would take legal action against opioid companies came after a months-long court fight involving the DOJ's position on Drug Enforcement Agency records.

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Jim Ferraro of Ferraro Law Firm, left, and Elliot Scherker of Greenberg Traurig.

Will Florida Forsake Frye?

Evidentiary standards aren't the most fascinating topics. But they often make or break a case.

That's why all eyes are on Florida, where the state's Supreme Court is reviewing whether to change the evidentiary rules to move on from the Frye to the Daubert standard when looking at the admission of expert testimony. Here's my colleague Celia Ampel's coverage of the case, which was set to go before the Florida Supreme Court Tuesday.

A little background: In 2013, the Florida legislature enacted the Daubertstandard, but the Supreme Court declined to adopt it until the right case come along. Enter DeLisle v. Crane, where an appeals court reversed an $8 million mesothelioma verdict after finding the judge should have excluded expert testimony under Daubert.

Plaintiffs attorney Jim Ferraro of the Ferraro Law Firm is expected to argue against Richard Doran of Ausley McMullen who is representing defendant Crane Co., and Elliot Scherker of Greenberg Traurig who is appearing for R.J. Reynolds. So what's at stake? “Plaintiffs lawyers argue that they would have a harder time getting expert testimony accepted under Daubert, which might mean they take fewer clients or at the very least, lose more cases,” Celia told me. “Defense attorneys argue Daubert levels the playing field for corporations so they aren't facing giant verdicts that stem from what they argue is junk science. Defense lawyers also say Florida keeping Frye means plaintiffs can venue-shop, since so much of the rest of the country uses Daubert, and that affects defendants adversely, too.”

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DOJ on Cy Pres: 'Regrettable,' Not Reviewable

The Justice Department asked the U.S. Supreme Court to reject a petition to review cy pres funds, despite previously calling the controversial payments “regrettable.”

Law.com's Marcia Coyle wrote in this story about the DOJ's brief opposing a petition to review a settlement between the U.S. government and Native American farmers and ranchers that included $380 million to third party nonprofits.

Why is the DOJ opposing this? Because U.S. Attorney General Jeff Sessions announced a new policy in June (see here) that generally prohibits government attorneys from engaging in settlements that involve cy pres payments. In the brief opposing review, SG Noel Francisco said the Justice Department's new policy “will prevent the recurrence of circumstances like those that led to the modified cy pres provision here, in turn eliminating any need for this court's guidance … “

But wait: The DOJ's Rachel Brand also indicated last month that the feds would be reviewing more class action settlements (noted here). That begs the question: Does that mean cy pres won't be under the DOJ's microscope? Not exactly, said Joseph Sellers of Cohen Milstein, class counsel in the case before the Supreme Court. He told me there's “an important distinction.”

“Certainly, there are rules, there are statutes, in fact governing what may constitute permissible use of government funds,” he said. But that doesn't prevent the government from intervening in a cy pres case. “There are no statutory constraints on the terms that private parties may enter into.”

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DOJ Fought Before Deal on DEA's Opioid Data

Timing is everything. In the months leading up to U.S. Attorney General Jeff Sessions' announcement of a Justice Department task force to prepare for potential involvement in opioid litigation, DOJ lawyers were trying to prevent a DEA drug distribution database from being disclosed. Here's my story.

Backstory: In October, when Trump formally declared the opioid crisis a public health emergency, government lawyers opposed a subpoena for the database. But before that got any further, the MDL panel sent all the opioid cases to U.S. District Judge Dan Polster, who last month ordered both sides to come up with an agreement on the data.

Now what happens? After much back-and-forth, the DOJ said Monday it had reached a deal. But it had one hitch: The data had to remain confidential.

Who Got the Work?

Southern California Edison has turned to John Hueston of Hueston Hennigan to respond to what are now 20 lawsuits filed on behalf of dozens of individuals who died, were injured or had property damages from a massive wildfire and mudslides that ravaged Southern California in December and January. Last month, plaintiffs lawyers at Lieff Cabraser and Capello Noëlmoved to create a Judicial Council Coordinated Proceeding (JCCP) of the litigation. Hueston, the former federal prosecutor in the Enron trial, represented IMDb in its summary judgment win last month (see here).

Here's more you need to know this week:

➤ Taking Aim at Uber: Pennsylvania Attorney General Josh Shapiro has sued Uber for violating the state's Breach of Personal Information Notification Act when it failed to disclose its 2016 data breach — a $13.5 million mistake, Shapiro's office said. Here's the Law.com story. In a statement, Uber's chief legal officer, Tony West, said he was surprised. Then added this not-so-conciliatory tidbit: “While we do not in any way minimize what occurred, it's crucial to note that the information compromised did not include any sensitive consumer information such as credit card numbers or Social Security numbers, which present a higher risk of harm than driver's license numbers.”

➤ No Contingency: The U.S. Supreme Court declined to review a case challenging New Hampshire's hiring of outside counsel in it opioid case. According to Law.com's story (see here), opioid manufacturer Endo Pharmaceuticals Inc. (repped by Arnold & Porter's Lisa Blatt) had challenged the state's retention of Cohen Milstein on a contingency fee basis. One side note: The firm's lead attorney, Linda Singer, left last year for Motley Rice, which is now handling New Hampshire's case.

➤ Money Malaise: Cryptocurrency exchange Coinbase was hit with a class action that could be the first in federal court to allege insider trading claims over its announcement that it would handle Bitcoin Cash transactions. Law.com's story is here.

But that's not Coinbase's only legal problem. Another class action, brought under California's Unclaimed Property Law, alleges that Coinbase kept unclaimed crystocurrency. The complaint (see here) acknowledges that Coinbase sent class members an email, and even included a link to create an account to redeem it.

“But until 2017, most people never heard of a 'bitcoin' or cryptocurrency, so most of these emails were disregarded,” the complaint says.