Welcome to Critical Mass, Law.com's briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. That $1 billion check that Wells Fargo says it might pay to federal regulators? Don't bank on it, lawyers say. The NFLasks for an offside call against some lawyers in the concussion settlement. And a new suit claims plaintiffs attorney Walter Umphrey's former mistresssnookered him out of $2 million.

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Feds to Wells Fargo: Show Me The Money

Wells Fargo could be on the hook for $1 billion in regulatory fines tied to allegedly overcharging its consumers for mortgage and insurance products. See Law.com's story by Sue Reisinger here, and a report from Reuters here.

Bank officials say the Consumer Financial Protection Bureau and the U.S. Treasury Department's Office of the Comptroller of the Currency were considering the sanction.

I reached out to Peter Henning, professor at Wayne State University Law School, to weigh in on the regulatory action. He told me:

“I think the CFPB is trying to make a big splash, similar to the Justice Department's multi-billion dollar settlements with the banks over mortgage-backed securities, to show that it is fulfilling its mission. So the goal is to garner the major headline, and Wells Fargo shareholders are the ones who will ultimately pay the price. It does not sound like any individuals will be named in the case, so like the other bank settlements it's just the organization that pays, not those responsible for the violations or the executives who oversaw the enterprise when it happened. Given that this may be the only CFPB settlement this year, it will be interesting to see what the reaction is from other companies.”

The actual amount isn't certain. That's according to Roland Tellis (Baron & Budd), who is co-lead plaintiffs attorney in related class actions claiming Wells Fargo steered its auto financing customers to insurance they didn't want. It's also not clear that consumers would benefit. He wrote:

“Certainly, it underscores the egregious nature of the conduct here and the exposure Wells faces in a jury trial, but fines typically don't flow to consumers so I don't expect it to have any legal impact on class members' damages.” 

 

 

NFL Seeks Offside Call in Concussion Case

As some plaintiffs' lawyers escalate their complaints about the $1 billion NFL concussion settlement, the league executed a novel play: It wants a special investigator to look into alleged “widespread fraud” in the claims process. That's according to Law.com's story by Max Mitchell (see here).

Here's what you need to know: The league is worried that law firms are coaching their clients to obtain more favorable scores in the claims assessment process. Of course, some plaintiffs attorneys have their own gripes, such as the slow pace of the claims process and the influence of outside litigation funders. But the NFL's motion, filed by Brad Karp of Paul Weiss, says 46% of claims have been audited because of “red flags.”

Max told me: “Things are definitely getting more contentious, it seems. For a while the players' attorneys have been saying the claims administrator is dragging its feet and the NFL is fighting everything, and so this seems to be the flip-side of that, where the NFL is saying that attorneys are submitting bogus claims.”

 

 

Lawsuit: Lawyer Who Vanquished Big Tobacco Fell Victim to Ex-Lover's Scam

Big Tobacco was no match for attorney Walter Umphrey … but apparently, a woman could have been.

Law.com's Brenda Sapino Jeffreys has this story about a lawsuit filed on Friday against a Houston woman accused of convincing Umphrey, a founder of Provost Umphrey, into giving her $2 million in money and property over their years-long affair. And get this: The suit was filed by Umphrey's wife, Sheila.
 Jolyne Thompson “engages in behavior designed to target, seduce, and then defraud, wealthy men,” and Umphrey was “one such target,” the suit alleges. Soon after their affair started in 2008, for instance, Umphrey transferred $24,000 to Thompson to enter a World Series of Poker event in Las Vegas. “As time passed, Thompson's grip on Mr. Umphrey's wallet tightened,” the suit says, even after Umphrey began to develop early-onset Alzheimer's disease in 2012.

Umphrey, by the way, is best known for helping negotiate a $17.3 billion settlement with tobacco companies for the state of Texas. His firm's website says he's been on non-active status since 2016. It's also got a long list of accolades about him.

Brenda told me it's not the first time Umphrey's mental health was at the center of a legal dispute: See her story here about a rift in 2015 with a former partner.

 

 

Ford Targets Judge in F-150 Rollover Case

The judge overseeing a high-profile wrongful death trial against Ford is now the one in the headlights: Ford's lawyers have filed a motion to recuse Gwinnett County State Court Judge Shawn Bratton because of his “one-sided rulings” and “refusal to at least admonish” opposing counsel. Here's the story from Law.com's Katheryn Tucker.

A quick recap: The suit claims the roof of a couple's F-150 crushed themto death in a rollover accident. Three weeks into trial, both sides asked for a mistrial. Bratton granted one on April 6. (See here.) Ford now wants a new judge for Round 2. Ford's lead attorney D. Alan Thomas (Huie Fernambucq & Stewart) says Bratton “crossed a line” and accused plaintiffs attorney Jim Butler (Butler Wooten & Peak) of racism, sexism and discrimination during voir dire. Butler told Katheryn: “Ford and its lawyers must truly be deranged.”

Here's some more news to get you through the week:

Facebook Gets Tagged: A federal judge has certified a class of consumers in Illinois who sued Facebook for violating their privacy under the state's Biometric Information Privacy Act, which governs the collection of biometric data such as fingerprints and facial features. See Law.com's story here. U.S. District Judge James Donato in San Francisco rejected certification of all users who uploaded a photo onto Facebook—but he allowed a narrower class to proceed.

Mesh Bellwether: A New Jersey jury awarded $35 million in punitive damages to a woman and her husband who sued over allegedly defective transvaginal mesh devices made by C.R. Bard. The Law.com story is here. Friday's award is in addition to the $33 million in compensatory damagesthat the jury granted in a Thursday verdict. The case is the first bellwether trial in New Jersey state court against Bard.

Off the Field: DraftKings and FanDuel are in settlement talks over consumer class actions, according to my story in Law.com. The move comes as both sides were awaiting a ruling from U.S. District Judge George O'Tooleon whether to grant motions to compel arbitration—something that got much harder to fight after the 2nd Circuit's Aug. 17 ruling last year in Meyer v. Uber Technologies.

A Hang Up: Lawyers, take note: class members might not want to answer your phone calls. Check out this amusing piece in The Wall Street Journal about plaintiffs attorney John Barrett's attempt to reach potential class members as part of a $61 million judgment against Dish Network over unsolicited phone calls. Unsatisfied by an 8% claims rate, Barrett resorted to—you guessed it—making phone calls. “I do see the irony of a bunch of lawyers calling people who have been bombarded with telemarketing calls,” Barrett (Bailey & Glasser) said in the story.