Welcome to Critical Mass, Law.com's briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. Chadbourne & Parke settled a gender discrimination class action this week — how much did women get? “Troubling circumstances” is how a federal judge described Morgan Lewis's actions in a class action. And more Xarelto trials are in the works.

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Who Benefits from the Chadbourne Sex Bias Settlement?

When it was filed in 2016, the gender discrimination case against Chadbourne & Parke was touted as a $100 million class action.

This week, the case settled for a little more than $3 million — with one third of that going to lawyers. Here's the story by my colleague Christine Simmons.

To be sure, Chadbourne & Parke (now part of Norton Rose Fulbright) hit a lot of obstacles in this case. The federal judge in New York refused to dismiss the case, and then ordered additional discovery (and speaking of discovery: here's another Law.com story about the unsealed documents coming out of a gender discrimination case against Microsoft).

This week's settlement is set to go to three lead plaintiffs who ended up securing a total of $2 million in back pay. That's just for their Equal Pay Act claims.

Wednesday's motion to approve the settlement says there are “separate agreements that resolve all of plaintiffs' remaining claims against defendants.”

So what does that mean? Simmons told me:

“It's not clear who else may have benefited from the settlement, whether Norton Rose will be forced to do anything for its current female partners or former Chadbourne partners, and whether the three named plaintiffs obtained anything else under any other claim besides the EPA counts. That may or may not be part of any private portion of the settlement.”

The motion also says “there are no other opt-in plaintiffs.” That's significant because, unlike most class actions, cases brought under the Equal Pay Act require class members to opt in. Plaintiffs' attorney David Sanford (Sanford Heisler Sharp) originally estimated that about 26 current and former female Chadbourne partners (see here) would be part of the class. But not everyone wanted to be included (see here).

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'Troubling Circumstances' Lead to Second Thoughts for Morgan Lewis

It'a best to be careful when representing witnesses who also happen to be prospective class members — particularly, if you're the defendant.

That's the lesson that Morgan, Lewis & Bockius learned in a wage-and-hour class action against Interstate Hotels & Resorts that a federal judge certified this week. (See Law.com's story by Erin Mulvaney here.)

The short story: Morgan Lewis repped several would-be class members who filed declarations opposing class certification — but the firm provided no written consent.

U.S. District Judge William Alsup of the Northern District of California didn't disqualify Morgan Lewis, but he had concerns about what he called “troubling circumstances.” He struck the declarations and barred Morgan Lewis from cross examining any hotel employees it represented.

According to the story, partner Jason Mills had a long list of steps the firm should have taken. He wrote in a court filing: “In hindsight, the better practice would have been to obtain, in an abundance of caution, advance written waivers from Interstate and the three former employees, or to have offered separate counsel to the three former employees for representation at their depositions, or to have simply defended the depositions without representing the three former employees. Morgan Lewis will certainly not repeat this conduct, in this court or any other.”

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Xarelto Cases: Coming Soon to a Court Near You

After three bellwether trials over Xarelto last year (see here), all of which ended in defense wins, U.S. District Judge Eldon Fallon is moving the cases in the multidistrict litigation in New Orleans back to the courts where they were filed. Last month, he ordered 1,200 of the 18,000 lawsuits filed over the prescription anticoagulant to be prepared for trials in their home courts (see his order here).

Fallon wants two groups of 600 each. Of those, plaintiffs attorneys would select 200, and counsel for defendants Bayer and Johnson & Johnson's Janssen Pharmaceuticals would pick 200. Fallon would choose the last 200. The first selections are due April 16.

Co-lead plaintiffs attorney Andy Birchfield of Beasley Allen told me: “We are prepared to take these lawsuits to court one-by-one anywhere in the country until Xarelto's makers take the basic steps necessary to correct the known health and safety risks associated with this drug.”

Who Got the Work?

Three drug makers have reached settlements of hundreds of cases brought over low testosterone medications. Here's my story. But defendants AbbVie and Abbott Laboratories, which have the bulk of the more than 6,000 cases in multidistrict litigation, are taking their chances at trial. David Bernick of Paul Weiss has been lead defense counsel, but both companies brought in the pre-eminent product liability firm Shook, Hardy & Bacon to assist with several upcoming trials this year. Alicia Donahue, co-chairwoman of the product liability litigation practice group, who is in San Francisco, and Sean Wajert, managing partner of the Philadelphia office, made appearances on Jan. 18.

Here's more you need to know as we close out the week:

An Unequal Field: The former chief information officer of an Equifax division was charged this week with insider trading. According to Law.com's story (see here), Jun Ying was indicted by federal prosecutors in Georgia on charges stemming from stock sales he made just before last year's announcement of a massive data breach at Equifax. A corresponding civil complaint by the U.S. Securities and Exchange Commission says Ying exercised all his vested stock options and sold the shares for nearly $1 million prior to the public disclosure of the breach, avoiding more than $117,000 in losses.

A Long Road: The Georgia Supreme Court has upheld a $40 million verdict to the parents of a 4-year-old who was killed when a rear mounted gas tank of the Jeep Cherokee he was riding in exploded. Here's Law.com's story. The case has been closely watched by business groups. A jury originally awarded $150 million to the family — apportioning 1% fault to the driver of a pick-up truck that hit the Jeep from behind, and 99% to Chrysler. It was later reduced to $40 million. Thursday's decision was a win for Jim Butler of Butler Wooten & Peak who tried the case on behalf of Remi Walden's parents along with his son, Jeb Butler of Butler Tobin. Jim Butler told Law.com's Katheryn Tucker: “Remi's parents and their legal team hope this is the end of it.”
More Airbag Suits: As if the Takata airbag scandal couldn't get any bigger…now, the lead plaintiffs attorneys in the multidistrict litigation have filed suits against new defendants: Mercedes, Chrysler, GM and Volkswagen. Here's Law.com's story. The suits, for economic losses, add to the $1.2 billion in settlements with Honda, Toyota, BMW, Nissan, Mazda and Subaru. There also are pending claims against Ford.

Flood Damage: The U.S. Army Corps of Engineers could be on the hook for $300 million in damages after a U.S. Court of Federal Claims judge found its changes to the Missouri River caused much of the flooding in the area between 2007 and 2014. My story (see here) quotes plaintiffs attorney Benjamin Brown of Cohen Milstein saying: “This is one of the largest and most sweeping takings holdings in United States history—Katrina probably being the other one.”

So what happened in Katrina? In that case, a different Court of Federal Claims judge found in 2015 the Corps had contributed to flooding in New Orleans from Hurricane Katrina. Oral arguments took place last month before the Federal Circuit. It was Assistant to the Solicitor General Brian Fletcher versus Chuck Cooper of Cooper & Kirk for the plaintiffs — yes, that Chuck Cooper, the Republican lawyer who is the personal attorney to U.S. Attorney General Jeff Sessions.