Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening: Lawmakers introduced a new package of billsagainst forced arbitration. A record 35% of lead counsel positions in MDLs went to women last year. How did Wilkinson Walsh and Keker Van Nest get defense verdicts in a pair of class actions?

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Congress Launches New Bid to Curb 'Forced' Arbitration 

The Forced Arbitration Injustice Repeal Act (FAIR Act) made its debut on Feb. 28, with a hodgepodge of support that included the plaintiffs' bar, Google employees and former Fox News anchor Gretchen Carlson. The FAIR Act would end “forced arbitration” of legal claims brought by sexual harassment survivors, employees, consumers and others. The legislation, as well as a companion bill in the Senate, was part of a legislative package that sounded a lot like proposals introduced last year.

Here's what some said about the FAIR Act:

Christine Hines, legislative director, National Association of Consumer Advocates: “Forced arbitration is a rigged secret proceeding that denies the cheated and ripped off the right to seek remedies before a judge and jury, and allows corporations to hide their misconduct from the public.”

Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform: “The trial bar and its congressional allies are once again setting the stage to try to eliminate arbitration and flood the courts with a wave of lawsuits. Most arbitration cases can be done without the services of a trial lawyer, which is the problem for the plaintiffs' bar.”

The American Association for Justice, by the way, accompanied its support of the bill with a nationwide poll by Hart Research concluding that 84% of voters supported an end to forced arbitration (take a look at its findings here).

Elise Sanguinetti (Arias Sanguinetti), AAJ's president, told me why that poll was important:

“The polling is very significant because the polling done was focused in conservative districts and in less conservative districts. But what we can see is that consumers, employees, whether conservative or liberal, they both feel the same way strongly that they are against forced pre-dispute arbitration.”

 

 

More Women Take Reins in Multidistrict Litigation

The percentage of women who got the top coveted position of plaintiffs' lead counsel in multidistrict litigation reached a record 35% in 2018. That's according to my article, which updated this story about diversity in MDL leadership appointments.

Here's what I found: MDL leadership continued to get more diverse, with 31% of all positions going to women last year, up from 29% in 2017. But that's not the whole story. White men have dominated roles for lead counsel and membership on executive committees – the most senior leadership positions in MDLs. In 2018, according to my story, those appointments showed a marked change, with 31% going to women, up from 23% in 2017.

There are lots of reasons for the trend: A more diverse bench, women wanting to see some change and, well, plaintiffs' firms more willing to put women in charge. That was the case for Kristen Johnson (Hagens Berman), who was appointed co-lead counsel in two antitrust MDLs — one over Restasis eye drops and another over cholesterol drug Zetia. She told me:

“In both Restasis and Zetia my co-lead nomination was supported first and foremost by my firm, Hagens Berman, whose commitment to women in leadership is second to none. I had the support of all firms representing the direct purchaser plaintiffs — a half dozen or more of the country's top plaintiffs' litigation firms. These are firms that I have worked with for a decade or more, whose trust and respect I would like to think I have earned.” 

 

 

 

Two Rare Class Action Defense Verdicts in Calif.

Legal teams from Wilkinson Walsh + Eskovitz and Keker, Van Nest & Petersscored defense wins in a pair of rare class action trials. In a case over Bayer's “One A Day” multivitamins, Wilkinson Walsh partners Sean Eskovitz, Alexandra Walsh and James Rosenthal, along with counsel Kieran Gostin, won a jury verdict in San Francisco federal court. And Keker partners Simona Agnolucci and Erin Meyer, along with associates Christopher Sun and Kristen Lovin, got a tentative verdict from a Los Angeles Superior Court judge for their client, Public Storage, in a case challenging its insurance offered to storage unit renters.

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Here's what else you need to know:

Roundup Sanctions: A day after admonishing her in this month's bellwether trial over Monsanto's Roundup herbicide, U.S. District Judge Vince Chhabria sanctionedplaintiffs' attorney Aimee Wagstaff (Andrus Wagstaff) for “obvious violations” of his pretrial orders during her opening statement. My story says the judge ordered Wagstaff to pay $500 and come up with a list of every lawyer who worked on her opening for possible sanctions, as well. For her part, Wagstaff defended her actions.

Settlement Scrimmage: A dispute over third-party lenders in the $1 billion NFL concussion settlement has escalated, with funding company Thrivest petitioning the U.S. Court of Appeals for the Third Circuit to temporarily halt the administrator's payments to claimants, and co-lead plaintiffs' counsel Chris Seeger(Seeger Weiss) fighting back. Here's Law.com's latest update on the dispute, which erupted after Trivest sought to appeal U.S. District Judge Anita Brody's orderinvalidating third-party funding arrangements with ex-players.

On Fire: After a decade of defending California utilities PG&E and San Diego Gas & Electric against lawsuits brought by wildfire victims, Quinn Emanuel has switched sides, filing a lawsuit last week on behalf of former U.S. Congressman and now Tribune Publishing Co. Chairman David Dreier. Drier, according to my story, lost his Malibu home in the 2018 wildfire that ravaged Southern California. He's the latest to sue Southern California Edison for causing the fire. So why did the firm switch sides? Partner Kenneth Chiate, who lost his own Malibu home to a wildfire in 1993, said he was just giving some advice to the recent victims when “too many people asked if I could represent them.”

Thanks for reading Critical Mass. See you next week!