Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening this week: Lawyers at Cotchett Pitre and Freed Kanner fought to keep their leadership posts in two separate MDLs. Plaintiffs' firms objecting to their share of $550M in mesh fees keep the fight alive. And another talcum powder trial begins in California's Alameda County Superior Court.

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MDL Leadership Limbo

Leadership appointments in multidistrict litigation are among the most coveted roles in mass torts – but they are not necessarily permanent.

Case in point: In lawsuits alleging Apple purposely throttled older iPhones, Cotchett, Pitre & McCarthy is fighting to keep its co-lead counsel position after being accused of “a blatant and very serious violation” of a protective order. Apple lawyerTed Boutrous (Gibson Dunn) filed a motion to remove Joseph Cotchett from his appointment as co-lead counsel after he and fellow partner Mark Molumphy allegedly disclosed confidential information at a hearing last month. Both are due to respond on April 23.

And here's another: Kessler Topaz tried — and failed — to boot former partner Kimberly Justice from the leadership team in lawsuits alleging manipulation of the Chicago Board Options Exchange Volatility Index. Justice, appointed co-lead counsel in the case, left Kessler Topaz earlier this month for Freed Kanner. So, Kessler Topaz swooped in with a motion to replace Justice with partner Sharan Nurmil. That's not altogether strange, except that the other co-lead counsel, and the three lawyers appointed to the plaintiffs' steering committee, all wanted her to stay. On Tuesday, U.S. District Judge Manish Shah kept Justice on the team but added Nurmil to the plaintiffs' steering committee.

Yet even that sounds temporary. In his order, Shah said he would keep Justice on the team “for now,” adding: “I will consider restructuring the committee and appointing different lead counsel for terms to begin on August 1, 2019, after ruling on the pending motion to dismiss.”

 

 

More Wrangling Over Mesh Fees

The FDA on Tuesday ordered Boston Scientific and Coloplast to stop selling their transvaginal mesh products, but the fight over $550 million in common benefit fees in the litigation is far from over. A handful of vocal plaintiffs' lawyers objecting to their share of fees responded to accusations from lead attorneys that their applications were “riddled with excessive entries, duplicative billing” and other problems.

A quick backgrounder: Last week, fee and cost committee chairman Henry Garrard (Blasingame Burch) insisted that four objecting firms did little for the common benefit of all attorneys in the transvaginal mesh litigation. Much of the dispute centers on verdicts obtained in state courts in New Jersey and Pennsylvania. (The Pennsylvania Supreme Court, by the way, agreed last week to take up a jurisdictional dispute over the mesh cases, while an appeals court affirmed a $13.5 million verdict in Philadelphia state court). Adam Slater (Mazie Slater), Shanin Specter (Kline & Specter) and Ben Anderson (Anderson Law Offices) filed replies on Monday.

Anderson told me in an email:

“Unlike many of the mesh attorneys around the country, including those on the FCC, ALO took an enormous risk by devoting 100% of the law firm's time and resources for seven years to fight for the common benefit of tens of thousands of injured women across the country and their lawyers. The firm remains at a loss to understand how the eight firms comprising the FCC could possibly be entitled to two-thirds (over $230M) of the common benefit funds totaling $355M, which is due in no small part to their refusal to permit any review of their own time and hourly rate submissions. Several of these members played no role in the bellwether trials and active common benefit litigation, yet now stand to reap millions of dollars in fees.”

 

 

Northern Calif. Talc Trial Set to Begin

Another talcum powder trial is scheduled to begin Monday in California's Alameda County Superior Court – this time, against Johnson & Johnson and Colgate-Palmolive. Alameda County Superior Court, you might recall, is where Johnson & Johnson lost a $29 million verdict last month. The same plaintiffs' lawyers, Joe Satterley and Steven Kazan (Kazan McClain), who won that verdict, are up against Alexander Calfo (King & Spalding) and Michael Battle (Barnes & Thornburg) for Johnson & Johnson, and Gary Sharp, Peter Mularczyk and Andrew Sharp (Foley & Mansfield) for Colgate-Palmolive.

Here's what else you need to know:

Ad This Up: Tennessee became the first state in the nation to ban “deceptive” trial lawyer ads. The new law affects ads targeting prescription drugs and medical devices, mostly on TV and the Internet, that tort reform advocates claim scare patients into not taking their medications. The law, which becomes effective in July, bans ads that display the logo of a government agency, use the word “recall” if a product hasn't been recalled, or fail to disclose that lawyers paid for them. The U.S. Chamber of Commerce's Institute for Legal Reform has called on other states to enact similar legislation.

New PI firm: Three lawyers from Wilkes & McHugh have left to form a new personal injury firm, Murray Stone & Wilson. Wilkes & McHugh, based in Florida, is best known for large verdicts in elder abuse cases. The departing lawyers — William Murray, Matthew Stone and Erica Wilson — will focus on personal injury cases, including nursing home abuse and medical malpractice. At Wilkes & McHugh, Murray, based in Tampa, was managing attorney, and Wilson was head of the Philadelphia office.

House Hunters: Plaintiffs' attorney Tom Girardi (who's also the husband of “Real Housewives of Beverly Hills” star Erika Jayne) got a litigation funder's lawsuit against him into arbitration. The lender, Law Finance Group LLC, claims Girardi (Girardi Keese) hasn't paid back a $15 million loan. The dispute is now out of the spotlight, but Girardi is expected back in court on April 24 to face a fight over his assets. A writ of attachment lists his Pasadena, California, home, which has been featured on the Bravo TV show.

That's all for now. Thanks for reading Critical Mass! See you next week.