Welcome to Critical Mass, Law.com's briefing on class actions and mass torts. I'm Max Mitchell in Philadelphia, filling in for my colleague Amanda Bronstad. Google received some bad news recently as a California judge determined that a pay-equity class action can move forward against the tech giant. And the first case to go to trial over allegedly defective Bard IVC blood filters ended with a $4 million verdict for the plaintiffs in Arizona.

Send your feedback on today's issue to [email protected], or find me on Twitter: @MMitchellTLI.

 

Could a Pay Equity Class Action Against Google Be a Road Map for Change?

 

A class action over gender pay equity at Google has cleared a hurdle. And according to Law.com's Erin Mulvaney, the ruling could reverberate throughout Silicon Valley and the tech world.

Last week, a San Francisco Superior Court judge ruled that as many as 5,000 female Google employees may sue the company over a policy that considers new hires' previous salaries to determine a starting salary level. According to some attorneys, the ruling could serve as a road map for suits targeting pay inequality in big tech companies.

Issues about whether salary history can be used in the hiring process has been a sticking point in equal pay litigation. The U.S. Court of Appeals for the Ninth Circuit recently took up the issue in a case where the U.S. Equal Employment Opportunity Commission has argued policies allowing prospective employers to base salaries on previous earnings institutionalize pay disparities.

Altshuler Berzon and Lieff Cabraser Heimann & Berstein filed the suit against Google. Altshuler Berzon attorney James Fineberg said Friday's ruling “lays out a road map for how to certify a gender pay equity case.”

Meanwhile, management-side law firm Seyfarth Shaw said in a client advisory that the ruling was “a worrying development for employers.” The decision “could provide a 'blueprint' for how other plaintiffs may attempt to cobble together broad classes that encompass widely disparate job positions, seemingly without regard for the individual job duties or qualifications associated with those positions.”

Plaintiffs Draw First Blood in Trial Over Filter Defect

 

The first case to go to trial over Bard IVC blood filters has ended with a verdict for the plaintiffs. A jury in Arizona federal court awarded plaintiff Sherr-Una Booker $4 million, finding she was entitled to $2 million in compensatory damages and $2 million in punitive damages. The verdict, however, was reduced to $3.6 million after finding that a non-party doctor was liable for 20 percent of the compensatory damages.

The case alleged that a filter meant to prevent blood clots–which was implanted in a large artery leading to the heart–broke apart, sending one fragment into the plaintiffs heart and leaving another piece lodged in a vein. The plaintiffs contended that the manufacturer knew the devices were defective, but continued to make them.

The case is one of more than 3,000 involving similar complaints that have been consolidated before Judge David Campbell in Arizona. The next trial is slated for May. A member of the trial team told my Law.com colleague Greg Land that the jury's decision to award punitive damages showcases the litigation's potential.

“Arizona's a very conservative jurisdiction, so punitives are very rare out here,” Atlanta attorney Robin Lourie said. Lourie helped try the case along with Robert Roll of Watkins, Lourie, Roll & Chance; Mark O'Connor of Phoenix's Gallagher & Kennedy; Ramon Lopez of Newport Beach, California's Lopez McHugh, and Julia Reed Zaic of Heaviside Reed Zaic.

Bard has already announced it would challenge the verdict as being inconsistent.

Who Got the Work?

 

A political data firm that worked for President Donald Trump's campaign in the 2016 election is facing a new lawsuit in New York federal court over claims that it improperly harvested Facebook user information.

My Law.com colleague Colby Hamilton reports that the latest suit against Cambridge Analytica was filed Monday in the U.S. District Court for the Southern District of New York. It joins four other class action suits that have been brought in California and New Jersey, and also marks Manhattan law firm Gardy & Notis' entry into the growing litigation. Meagan Farmer is lead counsel for the plaintiffs, who say their data was used to unwillingly target them with political messages during the 2016 presidential campaign.

Here's what else you need to know this week:

Drywall MDL Crumbles: The federal judge overseeing thousands of cases claiming that Chinese drywall damages homes has announced he plans to return cases back to the courts where they were originally filed. The Associated Press reported that U.S. District Judge Eldon Fallon of the Eastern District of Louisiana, who in 2009 was tasked with handling the consolidated caseload, told the U.S. Judicial Panel on Multidistrict Litigation that he wants to transfer all remaining Chinese drywall cases that were sent to him. The panel said it would return the first 1,700 cases to Florida's federal courts if no objections were filed by Thursday. At least three objection notices, however, have been filed by attorney representing 750 clients. “We're sort of confused as to why only these particular claims are being transferred back for trial,” said Ann Saucer of Baron & Budd, which joined others in an objection for 418 clients.

Round Two Over Xarelto: The second state court trial over claims that Johnson & Johnson's blood thinner Xarelto cases uncontrollable bleeding is set to begin Thursday in Pennsylvania state court. After three losses in federal court, a Philadelphia jury late last year awarded a nearly $28 million verdict in the first case to be tried in state court. That verdict was later reversed by Philadelphia Judge Michael Erdos, who is set to preside over the upcoming trial. Here is my previous coverage.

Federal Pharma Filings Fall: Medical device and pharmaceutical liability lawsuits may be the leading category of product liability complaints in federal court, but according to a new report, the filings have been decreasing over the past few years. Read my colleague Andrew Denney's review of the report issued Monday by legal analytics firm Lex Machina.

PACER Fees Misused?: A D.C. judge ruled Saturday that the federal judiciary misused millions of dollars in fees derived from the public web portal known as PACER. Here is Mike Scarcella's story on the ruling.