Welcome to Critical Mass, Law.com's weekly briefing on class actions and mass torts. This week, a judge slashed a $289 million Roundup verdict, but it is plaintiffs' lawyers who are cheering. Also, the 1st Circuit came out with a key ruling about uninjured class members. And find out who stands to get $35 million in legal fees from Yahoo's data breach settlement.

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Roundup Gets Rounded Down

A San Francisco judge slashed the $289 million Roundup verdict against Monsanto to about $78.5 million—and plaintiffs lawyers are rejoicing!

As Ross Todd reports for Law.com, San Francisco Superior Court Judge Suzanne Bolanos found the $250 million in punitive damages to be unconstitutionally high. But she didn't think it was unjustified, despite a tentative ruling she issued two weeks earlier to toss the entire punitive damages award. Instead, she capped punitives at $39.25 million—the amount of compensatory damages.

Ross told me:

“The judge lowered it after finding the jury's punitive number didn't pass muster under the 14th Amendment. She found that $37 million of the compensatory damages were non-economic—a 'substantial' amount. 'In a case such as this where there is a punitive element to the compensatory damages award, the law supports only a one-to-one ratio for punitive damages,' the judge wrote.” But it was bad news for Monsanto. Its parent corporation, Bayer, vowed to appeal. Bloomberg reported that Bayer's shares plummeted after news of the ruling, and had more on the judge's remarkable turnaround from her tentative order, which looked to be going Monsanto's way.

There are six Roundup trials coming up in 2019. Plaintiffs attorney Aimee Wagstaff (Andrus Wagstaff) told me: “Our trial teams are picking up steam, and we are ready.”

First Circuit Weighs in on Uninjured Class Members

The defense bar is raving about a ruling by the U.S. Court of Appeals for the First Circuit that decertified a class in which an estimated 10 percent of the class members were uninjured. Circuit Judge William Kayatta, who dissented from the In re Nexium Antitrust Litig. decision in 2015, authored the Oct. 15 opinion in an antitrust class action over anti-inflammatory prescription drug Asacol.

In re Nexium upheld a certification order, finding that the defendant, if it wanted to, could identify such a “de minimis number of uninjured members” through the use of affidavits. But in the Asacol case, Kayatta said the defendant, Allergan, was looking at actually contesting what could end up being potentially thousands of affidavits.

Wystan Ackerman (Robinson + Cole) wrote on his blog, Class Actions Insider:

“This opinion thoroughly addresses an important issue that is present in many consumer class action suits. I expect it will be cited and likely followed by other circuits.”

Who Got the Work?

Yahoo has agreed to pay $85 million to settle consumer class actionsbrought over its recent data breaches, and plaintiffs lawyers are expected to get up to $35 million in attorney fees. So who were the lead lawyers behind the settlement? John Yanchunis (Morgan & Morgan) was lead settlement class counsel. Executive settlement class counsel were Ariana Tadler (Milberg Tadler), Stuart Davidson (Robbins Geller), Gayle Blatt (Casey Gerry), and Karen Riebel (Lockridge Grindal). Daniel Robinson (Robinson Calcagnie) also was involved.

Here's Some More News:

Trojan Truce: USC has agreed to pay $240 million to settle class actions brought in federal court alleging its former campus gynecologist sexually abused students. The settlement resolves claims of potentially tens of thousands of women who saw Dr. George Tyndall, the university's gynecologist for more than two decades. Claimants will be awarded based on three tiers of injuries under the settlement, which includes $25 million in attorney fees.

Post-Mortem Appeal: The law firm of the late John O'Quinn lost its bid before the U.S. Court of Appeals for the Fifth Circuit to force its excess insurance carrier to fork over $10 million. The dispute stems from a $46.5 million settlement that the Houston personal injury lawyer reached with his former breast implant clients relating to litigation overcharges. O'Quinn's firm sought to recover $15 million of the payout from his insurance companies. The primary carrier agreed to pay $5 million, but the excess insurer, Lexington Insurance, refused to pay the remaining $10 million.

Tracking Target: Facebook was hit with yet another class action, this time alleging it tracks the locations of its users even if they change their privacy settings to prevent it. The lawsuit mirrors a class action brought against Google. Tycko & Zavareei and Stueve Siegel Hanson filed the Facebook case in California.

Thanks for reading Critical Mass! See you next week!

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