Happy Halloween! And welcome to Critical Mass, Law.com's weekly briefing on class actions and mass torts. Here's what's happening: A federal committee meets tomorrow to discuss the first possible rules for multidistrict litigation. Ted Frank's long-awaited cy pres argument goes before SCOTUS today. And why a ruling over Mirena contraceptives is summoning some deja vu.

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Following the Rules

A federal civil rules committee meets on Thursday in Washington D.C. to discuss, among other things, whether to implement the first rules in multidistrict litigation proceedings.

Here's the agenda book for the Advisory Committee on Rules of Civil Procedure.

A bit of background: A year ago, the committee created a subcommittee to look into proposals to implement the first rules for MDLs. Rules proponents cite a bunch of scary stuff going on in MDLs, which now make up nearly half of the federal case docket. What frightens them most: Cases being filed with the help of outside litigation financiers and lead generators that drive up the size of MDLs to unwieldy and unmanageable proportions.

A lot of the concerns are coming from defense bar advocacy groups, like the Lawyers for Civil Justice, the U.S. Chamber of Commerce's Institute for Legal Reformand the Washington Legal Foundation (which is hosting this webinar today).

But a letter sent to the committee on Friday came from Cornell Law School Associate Professor Zachary Clopton. He wrote to “urge caution” in making “specialized rules for a subset of federal cases.” Most MDLs aren't that big, he wrote, and what works for litigation over Volkswagen's emissions scandal and the BP oil spill might not work for a smaller docket. I reached out to Clopton, who told me:

“Their first issue is, what should be the scope of these rules, if any? My intervention is to first say to the committee, 'you're right to be thinking about that. That's a hugely important question. That swamps all the other considerations.'” 

A Monster Ruling in Mirena

A federal judge in New York tossed all seven plaintiffs' experts in multidistrict litigation over Mirena birth control devices.

Hundreds of cases allege that the Mirena intrauterine device, made by Bayer, caused increased fluid in the skull that can lead to blindness and other problems. U.S. District Judge Paul Engelmayer said the collective testimony of the plaintiffs' experts was “unreliable” and “flawed.”

If all this sounds a bit familiar, it's because another New York judge, U.S. District Judge Carol Seibel, tossed out all the experts two years ago in prior multidistrict litigation over Mirena that alleged different injuries. Engelmayer asked lawyers to submit a letter by Nov. 9 as to “whether, as in the earlier multi-district litigation involving Mirena presided over by Judge Seibel, this case should now proceed to motions for summary judgment limited to the issue of general causation.”

To Be Frank…

Ted Frank is arguing today for the first time before the U.S. Supreme Court in a closely watched case challenging the use of cy pres funds in class action settlements.

Frank, director of litigation at the Center for Class Action Fairness at the Competitive Enterprise Institute, represents an objector in Frank v. Gaos who is challenging a settlement with Google. The case has gotten a lot of attention, with numerous amicus briefs and this profile in The New York Times.

At issue: A settlement that paid $2.1 million to plaintiffs lawyers and $5.3 million to six nonprofits, some of which were their alma maters. The class members, meanwhile, got “zilch.” That's according to Melissa Holyoak, a senior attorney at CEI, who treated the public to this video about the case.

Here's some more news for this week:

Class Arbitration: The U.S. Supreme Court heard oral arguments on Monday in two cases about arbitration, one of which was a class action. Here's Law.com's report, and coverage from The New York Times and Reuters. The class action, Lamps Plus v. Varela, asked whether state law authorized class arbitration when the arbitration agreement says nothing about it. Andrew Pincus (Mayer Brown) argued for defendant Lamps Plus, while Michele Vercoski (McKune Wright Arevalo) argued for plaintiff Frank Varela.

What's in a Name?: Los Angeles plaintiffs firm Kabateck Brown Keller has shortened its name to just Kabateck. Name partner Brian Kabateck said Michael Brown retired in 2012 and Richard Kellner became of counsel at Jacoby & Meyers in 2015, then launched his own firm earlier this year. “In 2018, less is more,” Kabateck said.

Malpractice Verdict: A Florida jury hit Morgan & Morgan with a $5 million verdict in a legal malpractice case. Attorney Donald St. Denis (St. Denis & Davey) alleged that Morgan & Morgan attorney Armando Lauritano failed to properly file a medical malpractice claim against an obstetrics practice, nurse midwife and hospital. The former clients, Shawna and Rock Pollock, had retained Morgan & Morgan after a delayed emergency C-section caused brain damage to their son, now 11.

Pancake Peril: A 20-year-old student at Sacred Heart University in Fairfield, Connecticut, died after participating in a pancake-eating contest— and now her mother has sued the university. The lawsuit alleged that Caitlin Nelson's “mouth was compacted with pancakes, almost to her teeth, and the mass of pancake paste was like concrete.”

On that scary note, have a safe and spooky Halloween! And thanks for reading Critical Mass! See you next week.