Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's going on this week: Plaintiffs lawyers in the third Roundup trial have accused Monsanto of sending targeted ads to jurors. Lawyers take another stab at securing approval for the Yahoo data breach settlement. Also, as the fight escalates over transvaginal mesh fees, who's set to receive the most?

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Is Monsanto Geo-Tracking Roundup Jurors?

The stakes are high — and so is the media attention — in the third trial over Monsanto's Roundup brand weed-killer. So when Monsanto (now, after its acquisition, part of Bayer AG) paid for a full-page ad in The Wall Street Journal on the first day of voir dire, plaintiffs' attorneys brought a motion for a temporary injunction to bar it from paying for ads that tout the safety of its herbicide. Alameda County Superior Court Judge Winifred Smith seemed disinclined to infringe on free-speech protections of the First Amendment, and rejected the motion on Thursday. She also noted that plaintiffs' attorneys had run their own ads – a point emphasized by Monsanto in its opposition filing.

But she had questions when plaintiffs' attorneys brought up another kind of advertising in court: geofencing. What is that? According to transcripts of last week's hearing, Steven Brady (Brady Law Group) explained: “They put in particular longitude and latitude coordinates and they pump advertisements to apps that are on the phones of people within those coordinates.”

In this case, the courthouse in Oakland, California. That's jury tampering, R. Brent Wisner (Baum Hedlund) argued to the judge. And it happened in the first trial, he said:

“Numerous jurors during voir dire mentioned that they were having these things pushed on them as soon as they walked in the building.”

Smith however, refused to grant the motion, stating in her order:

“The court is not persuaded that the alleged geomarketing is materially different from carrying signs outside a courthouse or carrying placards or wearing buttons inside a courtroom or that it requires a different judicial response.”

Bayer praised the ruling: “Bayer's Roundup advertising is national in scope and the company is not running advertising that singles out the greater S.F./Oakland market or any part of it.”

 

 

Yahoo Settlement Now Worth $117.5M

If at first you don't succeed, try, try again — that's the refrain heard by lawyers whose $85 million class action over Yahoo's recent data breaches got an “F” from U.S. District Judge Lucy Koh a few months back. Early on Tuesday, they filed a new deal worth $117.5 million, according to my story.

Here's what changed: The fund to reimburse out-of-pocket costsincreased from $50 million to $55 million. Attorney fees dropped from $35 million to $30 million. The class definition expanded to include Yahoo account holders from 2012. And the new deal includes an information security budget at Yahoo of more than $300 million over the next four years, with 200 people involved.

Many of the changes appear to address concerns Koh had about the original deal, as well as the new class action settlement guidelines that became effective in the Northern District of California on Nov. 1 (check out this nifty chart comparing the Yahoo deal's details to data breach settlements with Home Depot and Anthem).

But will it be enough? After all, Koh questioned why the case involved 32 plaintiffs' law firms with a lodestar estimate of $22 million. The new deal has this attached lodestar calculation of $22 million — for 31 law firms.

 

 

Allegations Fly in Fight Over Mesh Litigation Fees

The explosive fight over common benefit fees in the transvaginal mesh litigation took another turn on Monday when the chairman of the fee and cost committee fired back at four law firms objecting to their share of the estimated $550 million pie. Henry Garrard (Blasingame Burch) accused the objecting firms of making false attacks and, in some cases, submitting applications “riddled with excessive entries, duplicate billing,” and other problems. My story comes with this comprehensive chart of all the firms planned to get common benefit fees from transvaginal mesh, the biggest mass tort in the country. Of note: the top five firms, totaling 40% of the fees, all have lawyers on the fee and cost committee.

 

Here's what else you need to know:

Chrysler Cost: Fiat Chrysler agreed this week to a tentative $110 million settlement with a class of investors over its “clean diesel” emissions scandal. The deal follows an $800 million class action settlement involving consumers and government regulators, reached earlier this year, over its “EcoDiesel” vehicles. The suit was filed in 2015, just after Chrysler agreed to pay a record $105 million fine to the National Highway Traffic Safety Administration over safety recalls.

 

Talc Turnaround? Johnson & Johnson scored another defense win in ongoing litigation over whether its talcum powder products caused mesothelioma. Bloomberg reported on the April 5 verdict in a case brought by plaintiff Robert Blinkinsop, a California man represented by Weitz & Luxenberg, who was diagnosed with mesothelioma in 2017. King & Spalding led the defense in that trial, which provided the “fourth verdict in favor of Johnson & Johnson in recent months,” according to spokeswoman Kim Montagnino. Others were in New Jersey and California.

 

All Things Being Unequal: A pair of new pay equity class actions dropped last week, including a $200 million lawsuit alleging a “fraternity culture” at Jones Day. Law.com reported that Sanford Heisler, which has brought pay equity suits against other law firms, filed the suit. Here's another Law.com article featuring two of the plaintiffs behind the suit, and Jones Day's response to the suit. Another pay equity class action was filed against Walt Disney Studios, alleging women at The Walt Disney Co. division are treated as “cheap labor.” Lori Andrus (Andrus Anderson), who settled a pay equity suit against Farmers Insurance for $5.9 million, filed that case.