Welcome to Critical Mass, Law.com's briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. The U.S. Supreme Court disappointed the defense bar Tuesday with a critical securities class action decision. Will a DC Circuit decision dial back TCPA class actions? And the death of a pedestrian in Arizona could open up a new front in Uber's legal troubles.

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

SCOTUS: Shareholders Can Sue in State Courts

The U.S. Supreme Court handed down a much-anticipated ruling over whether certain securities class actions can remain in state courts. The answer? Yes, they can. Here's the unanimous ruling authored by Justice Elena Kagan.

Beaver County Employees Retirement Fund v. Cyan had asked the high court to interpret whether the U.S. Securities Litigation Uniform Standard Act—a statute that Justice Samuel Alito Jr. referred to in oral arguments as “gibberish,” according to Law.com's story—applied to cases brought in state courts under Section 11 of the Securities Act of 1933. Such cases have been on the rise, particularly hitting California's tech firms. SLUSA was designed to curb securities class actions, in part by pushing them into federal courts.

The ruling is a big loss for the defense bar—and for Hogan Lovells partner Neal Katyal, who represented Cyan Inc. Thomas Goldstein of Goldstein & Russell represented shareholder plaintiffs, and Allon Kedem, assistant to the solicitor general, argued for the United States.

What's the impact? According to a Skadden Arps news alert:

“The Cyan decision means that defendants in securities litigation will have to contend with the difficulties of litigating 1933 Act class actions in state court, where they cannot rely on the full range of protections of the Private Securities Litigation Reform Act (PSLRA),” wrote partners Jay Kasner, Scott Musoff, Noelle Reed and Susan Saltzstein. “The decision is likely to result in an increase in 1933 Act claims brought in state courts, exposing defendants to litigating in multiple forums, including state courts where plaintiffs may contend that such claims are not subject to the procedural protections of the PSLRA.”

What's interesting is that 1933 Act filings actually dropped in 2017 in anticipation of the Cyan decision going the other way. (See my story on that here.)

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Will the DC Circuit Dial Back TCPA Class Actions?

The class action defense bar was buzzing over the weekend about the D.C. Circuit's reversal on Friday of an FCC rule interpreting the Telephone Consumer Protection Act. The appeals court on Friday unraveled parts of a 2015 rule that many in the defense bar claimed had contributed to a substantial increase in TCPA class actions. Here's the story from Law.com's Ben Hancock. A key issue was the legal definition of an “automatic telephone dialing system,” which many considered under the FCC rule to be too broad—potentially encompassing calls from a smartphone.

Here's what some lawyers had to say on Twitter:

➤ Greenberg Traurig's Ian Ballon: “Important news for tech companies and those involved in mobile marketing.”

➤ Tonia Ouellette Klausner of Wilson Sonsini (aka TCPA Lawyer):“Good guys win!”

➤ Kristian Stout, associate director for innovation policy at the International Center for for Law & Economics: “DC Circuit gets the 'capability' question right … The FCC's ruling would sweep in every cell phone under a statute designed for a narrow industry regulation on telemarketing.”

But will the ruling cut back TCPA class actions? Not exactly. Drinker Biddle partner Michael Daly, who is senior editor of the TCPA Blog, and Meredith Slawe, co-chair of the firm's class action team, told me in an email:

“The FCC will have to go back to the drawing board, and there will be a flurry of collateral litigation over what the D.C. Circuit's decision means. Although the decision may not immediately stem the tide of new TCPA filings, we are hopeful that the courts will wait for the regulatory process to play out, and that the FCC—which is now under the leadership of Chairman Pai, who vigorously dissented from the 2015 ruling—will apply the statute as it is written.”

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Pedestrian Death Could Spell Legal Trouble for Uber

An Uber vehicle hit and killed a pedestrian in Tempe, Arizona, on Sunday night — the first fatality involving a fully autonomous car. Uber has since removed all its autonomous vehicles in cities where it was conducting testing, and the U.S. National Transportation Safety Board is sending a team to the accident site.

Law.com's Ross Todd and Cheryl Miller had this story about the novel legal issues that could come out of this.

Could Uber, which appeared to be turning the corner on its legal pile-ups, be facing a new lawsuit? Bob Hilliard, of Hilliard Muñoz Gonzales, who was lead counsel in the GM ignition switch cases, told me: “This is textbook definition of 'design defect' under products liability law.”

Who Got the Work?

The first lawsuit to be brought over the collapse of a concrete pedestrian bridge at Florida International University that killed six people was filed on Monday. Plaintiffs lawyers are estimating up to $1 billion in damages, according to my colleague Celia Ampel's story (see here). Morgan & Morgan's Matt Morgan brought the case on behalf of a man who was seriously injured while riding his bicycle underneath the bridge. The team also includes Keith Mitnik and Belvin Perry, the retired judge in the Casey Anthony murder trial. Yesenia Collazo of the Collazo Law Firm in Miami also has been retained by the family of a man who died after the van he was in was crushed by the bridge. No word yet on who's representing the defendants, but at least one of them, bridge builder Munilla Construction Management LLC, has a history of being sued for negligent maintenance (see here).

Here is more you'll need to know:

➞ Trump Talks Opioids: President Donald Trump announced a plan on Monday to address the opioid crisis that involves funding for non-addictive painkillers, advertising public service messages and calling for the death penalty against drug dealers — the most controversial element. Attorney Jeffrey Simon (Simon Greenstone Panatier Barlett), who represents dozens of Texas counties that have sued opioid companies, told me: “The merits of the president's proposed solutions can and will be debated, but no one can legitimately dispute that America is in the grips of an opioid epidemic that will not get better without bold action.” He added that “opioid drug companies must be held legally and financially accountable for their role in fueling America's opioid epidemic.” But don't expect any Big Pharma executives to go to jail—that's according to law enforcement officials and prosecutors at an event last week at Penn Law, who found that possibility unlikely.

➞ Revving Up RICO: Chrysler will have to face RICO claims over its “EcoDiesel” vehicles after a federal judge in California refused to dismiss the case. See my story here. U.S. District Judge Edward Chen's ruling comes a month after U.S. District Judge Thomas Ludington in Michigan refused to dismiss a similar case against General Motors over diesel trucks—for many of the same reasons.

➞ Contingency Contracts: The first federal circuit to rule whether a government's hiring of outside counsel on a contingency basis violated a defendant's due process rights came down last week. Here's my story on the 9th Circuit's opinion, which upheld dismissal of a case brought against a California district attorney over his hiring of three law firms: Baron & Budd, Carter Wolden Curtis and Golomb & Honik. The issue has come up before in state courts, often in mass torts such as opioids and lead paint.

➞ Judge Hits Redial: AT&T will have to face a class action over the marketing of its “unlimited” data plans after a federal judge granted a motion to reconsider his earlier ruling that sent the case to arbitration. Here's the Law.com story. U.S. District Judge Edward Chen switched gears in the wake of a subsequent California Supreme Court ruling in McGill v. Citibank, which found that an arbitration agreement that waves the right to seek public injunctive relief is unenforceable.