Welcome to Critical Mass, Law.com's briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. Mark Zuckerberg's conciliatory statements to Congress this week didn't match Facebook's response in court. Arbitration clauses in employment contracts — class action waivers included — aren't all alike. And a second Xarelto trial opens in Philadelphia.

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Apologies Aside, Facebook Prepares for Court Fight

Facebook CEO Mark Zuckerberg began his Capitol Hill confessional this week, but the social media site's lawyers are playing a different tune in court where the company is defending about 20 consumer class actions over the Cambridge Analytica debacle.

As I reported Monday, Facebook has filed a motion supporting MDL treatment and let's just say it strikes a different tone than Zuckerberg's prepared testimony. (You can read my full story here.)

Here's why the motion is important: It's the first court filing to reveal some of Facebook's upcoming defense strategies in court. Orin Snyder of Gibson Dunn said Facebook broke no laws and, in effect, there was no data breach — rather, it was third parties to blame for violating the site's terms of service in sharing the information. Snyder also cited “deficiencies” in the complaints, like “the common struggle to identify any cognizable theory of injury or damages.”

That's a common defense argument in data breaches class actions. So let's take a look at how the complaints say Facebook users were harmed:

* Unwanted political ads. Most complaints say plaintiffs were bombarded with political ads. Attorney James Vlahakis (Sulaiman Law Group) said in a case brought in Illinois that Facebook users “were harmed because the above misconduct helped influence voters to vote for Donald Trump” and because the ads “resulted in wasted battery life and data usage on their smartphones.”

* Identity theft. A case in California said Facebook users have suffered time, expense, fear and anxiety that their personal information and identities won't be stolen in the future — specifically, during the next elections. Attorney Tim Blood (Blood, Hurst & O'Reardon) said the lawsuit “is both appropriate and essential to prevent other companies and individuals from undertaking similar illegal activities as this nation approaches the June primaries and the November midterm election.”

* Unjust profits. A lawsuit filed on Monday demanded that Facebook pay consumers the “sales value” of their personal information that was stolen. “Facebook has made immense profits off of the data of our plaintiffs,” said attorney Steve Berman (Hagens Berman). “We believe they deserve payback.”

Employee Arbitration Agreements Not Equal for All, Critics Say

Arbitration agreements in employment settings are common – but they are not alike.

In fact, employees in low-wage jobs, women and African-Americans are more likely to face mandatory arbitration agreements in their employment contracts than other groups. That's according to this story by my colleague Erin Mulvaney, who looked at a study released on Friday.

The study, from the Economic Policy Institute, also found that 30% of employers' mandatory arbitration agreements included class action waivers — which are the subject of a trio of cases now before the U.S. Supreme Court.

That's quite a lot, Erin told me. Here's why:

“Large employers are more likely than small employers to include class action waivers, so the share of employees affected is significantly higher than the share of employers engaging in this practice: of employees subject to mandatory arbitration, 41.1 percent have also waived their right to be part of a class action claim. Overall, this means that 23.1 percent of private-sector nonunion employees, or 24.7 million American workers, no longer have the right to bring a class action claim if their employment rights have been violated.”

Xarelto Opens Round 2 in Philly

The second Philadelphia trial over anticoagulant Xarelto began on Friday. Here's Law.com's story by Max Mitchell.

This time, plaintiffs told a jury that Bayer and Johnson & Johnson's Janssen Pharmaceuticals failed to disclose that taking Xarelto with other blood thinners increased a patient's chances of severe bleeding. Plaintiff Daniel Russell claims he took Xarelto along with Aspirin and Plavix.

Plaintiffs lead counsel is Levin Papantonio's Brian Barr, co-lead counsel in the MDL in New Orleans that landed three defense verdicts last year. His firm colleague Ned McWilliams withdrew from the Philadelphia plaintiffs team after the first trial because the judge sanctioned him for posting pictures of the courtroom on social media under the hashtag #killinnazis (see here). Brian Stekloff of Wilkinson Walsh + Eskovitz — whose colleague Beth Wilkinson scored those three verdicts — represented the defendants in court on Friday. Wilkinson also led the first Philadelphia trial, which ended in a $28 million verdict that got reversed.

Who Got the Work?

Winston & Strawn's Thomas Walsh has stepped in as lead defense counsel for Comerica Bank in class actions filed over the bankrupt real estate investment firm Woodbridge, which the SEC says was a $1.2 billion Ponzi scheme spearheaded by its founder, Southern California real estate developer Robert H. Shapiro (see the release here). Comerica has been named in at least six class actions for its role in maintaining Woodbridge's bank accounts. Cases were filed in California and Florida, where plaintiffs have moved to MDL all the cases. Last month, Walsh appeared in five of the cases and before the U.S. Judicial Panel on Multidistrict Litigation. On Friday, he filed an opposition to the MDL request.
Woodbridge and Shapiro have filed motions to dismiss the SEC complaint for lack of subject matter jurisdiction and failure to state a claim. Woodbridge filed for bankruptcy last fall (here's a backgrounder from the Sun-Sentinel.)

Here's more you need to know today:
Talc Talk: Johnson & Johnson's attempt to unravel an alleged scientific link between its talcum powder products and mesothelioma fell flat, according to this story on Law.com. The story has the scoop on the $37 million verdict that a New Jersey jury awarded last week. Following a battle of experts, the jury ultimately disagreed with Johnson & Johnson's lawyers, who had insisted that the company's talc products didn't contain asbestos.

Storm Surge: Plaintiffs lawyers have asked the U.S. Judicial Panel on Multidistrict Litigation to transfer hundreds of thousands of claims over the 2016 and 2017 hurricane season to South Florida. Here's Law.com's story. The motion pertains to claims involving hurricanes in Florida, the U.S. Virgin Islands and Puerto Rico. The story quotes Adam Moskowitz (The Moskowitz Law Firm), who filed the motion: “This is an unprecedented way to handle these cases. Nobody has used the MDL panel to move them.”
Trial Deflates: A judge in Georgia declared a mistrial in a high-profile case alleging a Ford F-250 pickup's defective roof was to blame for a couple's death. See Law.com's story here. On Friday, Gwinnett County State Court Judge Shawn Bratton dismissed the jury after three weeks, stating: “I have determined that in the interest of justice, this case can no longer proceed.” Bratton threw out a defense witness last week as a sanction for disregarding one of his pretrial orders (see here).

According to the story, Ford's lead counsel, D. Alan Thomas (Huie Fernambucq & Stewart) said he was disappointed — and for more reasons than one. “After talking to the jurors we are even more disappointed.”