Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening this week: The judge overseeing the Marriott data breach cases wants to know about litigation financiers, but lawyers insist they've checked out. Johnson & Johnson reached a $9.9 million settlement in the first case brought to trial by a state AG over trans-vaginal mesh. Find out which firms are representing members of the Sackler family, which owns privately-held Purdue Pharma, in opioid litigation.

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Lawyers Vow to Self-Finance Marriott Data Breach Litigation

Lawyers are lining up to lead the lawsuits filed over Marriott's massive data breach. More than 30 applications poured in last week, including four proposed slates of attorneys and several individual submissions by women citing the need for a diverse leadership team. A hearing is set for April 29.

It's a big case, and data breaches are big business for class action attorneys, according to a recent Carlton Fields survey.

Perhaps that's why U.S. District Paul Grimm for the District of Maryland ordered on April 11 that plaintiffs' lawyers disclose how they plan to finance their work, including the role that third party litigation funders might play in “litigation strategy and settlement discussions” (see his order here). Every single lawyer responded that they wouldn't accept outside funding.

Other judges have asked about outside litigation funding, of course, but not in as much detail. In the multidistrict litigation over NFL-related concussions, co-lead counsel Chris Seeger (Seeger Weiss) was forced to disclose he was a director of Esquire Bank after he criticized other litigation funding companies.

John Morgan (Morgan & Morgan), also was on the Esquire Bank board as of the end of 2018, according to the annual report it filed on March 14 with the SEC.

It was John Yanchunis, Morgan's firm colleague, who filed the first Marriott suithours after the company's Nov. 30 announcement. Yanchunis is also part of a proposed slate of attorneys applying to lead the Marriott cases. Yanchunis is part of the slate of attorneys who vowed not to use third party litigation funding.

According to an email from Esquire Bank CEO Andrew Saggliocca, Morgan is no longer on the board as of March of this year.

Morgan & Morgan partners had no comment for the record on John Morgan's former relationship with the bank.

 

 

Johnson & Johnson Settles First State AG Case Over Mesh

Johnson & Johnson's Ethicon Inc. agreed to pay $9.9 million on Monday to settle the first case brought by a state attorney general over transvaginal mesh devices.

Washington Attorney General Bob Ferguson announced the settlement on what was supposed to be the first day of trial. Trial is set to commence on July 12 in a similar case against Ethicon brought by California Attorney General Xavier Becerra.

Ethicon had a formidable defense team: Patty Eakes and Angelo Calfo (Calfo Eakes & Ostrovsky), William Gage (Butler Snow), Carolyn Kubota (Covington & Burling) and Steve Brody (O'Melveny & Myers).

That's something Ferguson mentioned at a press conference on Monday: “As you might imagine, they have all the resources money can buy to represent them. That is their right, of course, but it's a big undertaking to take on an entity of that size in a case as complex as this on behalf of many thousands of Washington state women and especially to prepare for a trial, which would have lasted some time.”

He also provided other reasons for settling. Unlike a verdict, which would have provided statutory penalties to the state, the settlement sets up a claims processthat allows potentially hundreds of women in Washington to get compensation. Ferguson also encouraged women to hire a lawyer to do something he can't: sue over their injuries, including pain and suffering.

Who Got the Work? 

The newest defendants to be sued over the opioid crisis — the Sackler family, owners of Purdue Pharma, one of the primary manufacturers of the prescription painkillers — have retained several law firms. Reuters reported on Monday that Mary Jo White(Debevoise & Plimpton) represents four Sackler family members. Those four are related to Mortimer Sackler, one of two brothers behind the development of Purdue's OxyContin. The other brother is Raymond Sackler, whose family members are represented by David Bernick (Paul Weiss) and Greg Joseph (Joseph Hage Aaronson). White told Reuters that the Sacklers are insisting on a global settlement of the cases, but they filed motions to dismiss the Massachusetts attorney general's case earlier this month. Robert Cordy (McDermott Will & Emery) is leading a Boston-based defense team for the Sacklers in that case.

Here's what else you need to know:

Naming Names: After sanctioning Aimee Wagstaff (Andrus Wagstaff) for what he termed “obvious violations” of pretrial orders in the first federal Roundup trial, U.S. District Judge Vince Chhabria ordered her to provide a list of names of all the other attorneys who worked on her opening statement. Last week, she did just that, identifying six lawyers by name while emphasizing that she had “ultimate decision making responsibility” as to trial strategy.

Bitter Departure: The Beasley Firm has filed a lawsuit over more than $500,000 in fees it claims Kennerly Loutey principals Max Kennerly and Kim Loutey owed from work they did on the Actos litigation. Both previously worked at The Beasley Firm as associates. Jim Beasley Jr. filed the suit, which stems from a settlement reached with Kennerly and Loutey before they left in 2015.

Butter Battle: A plaintiff suing over the trans fat labeling of butter alternative Benecol lost a bid to certify her class action after defendants McNeil Nutritionalsand its parent company, Johnson & Johnson, questioned the credibility of her claims – and the judge agreed. Plaintiff Suzanna Bowling alleged she purchased a tub of Benecol in 2011 at a Walmart in White Plains, New York, but defense attorneys Richard Goetz and Carlos Lazatin (O'Melveny) found no records of such a purchase. They also argued that Bowling, repped by Scott Bursor (Bursor & Fisher), was barred from suing under a settlement she had with the same defendants in a separate case over Listerine.

Thanks for reading Critical Mass! See you next week.