Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's going on: What could be Monsanto's next move after losing a $2 billion verdict? After criticizing coupons and cookies in class action settlements, the U.S. Department of Justice delved into another case—this time involving soap. Veteran talcum powder lawyers open another mesothelioma trial against Johnson & Johnson.

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Roundup Verdict Makes the Rounds

$2,055,206,172. That's how much an Oakland, California, jury on Monday awarded an elderly couple who claimed Roundup caused both of them to get non-Hodgkin lymphoma.

It's the third, and largest, verdict against Monsanto Co., now owned by Bayer AG, over its herbicide. Here's my Q&A with Brent Wisner (Baum Hedlund), who lead the trial team for plaintiffs Alva and Alberta Pilliod.

Bayer vowed to appeal, despite mounting pressure to settle more than 13,000 lawsuits over Roundup. Monsanto faces several more trials, the first of which is Aug. 19 in Missouri.

Here's a round-up of thoughts on the verdict:

Jean Eggen (Widener University Delaware Law School): “This case, the Pilliod case, will directly impact the other cases as they go to trial. Plaintiffs' attorneys, I'm sure, will be looking very closely at what the plaintiffs' attorneys did in this case, and strengthen their cases along the lines of what appealed to the jury and the judge.”

Carl Tobias (University of Richmond School of Law): “The critical question is when Bayer realizes that its strategy for trying the cases is not working and/or it loses enough cases with big verdicts that it seriously considers settlement. Now it seems to be doubling down on the strategy that EPA and hundreds of studies can't be wrong and appealing the punitive damage awards, which judges are likely to lower in light of SCOTUS guidance on punitive damages.”

Micah Dortch (Potts Law Firm): “This outcome should make Monsanto realize the seriousness of these claims and how a jury perceives the evidence. The company has got to come to the table with a viable plan to resolve these cases, or the losses are going to mount.”

The DOJ's Take on Cookies, Pressure Cookers…and Soap?

Those are the products at the heart of settlements that the U.S. Department of Justice has objected to this year as part of its growing interest to make sure class actions are fair to consumers.

In February: The DOJ filed a statement of interest in a case before the U.S. Court of Appeals for the Fourth Circuit involving Tristar pressure cookers. Later that month, it did the same thing in a case in Illinois involving the ingredient labels on Lenny & Larry's cookies.

Lawyers in the cookie case reached a new deal that a judge approved this month. But, on Friday, the DOJ filed another statement of interest, this time in a settlement involving the health claims of Dial's antibacterial soap.

So what do government lawyers have their eyes on? Plaintiffs' attorney fees, for one. But the DOJ also has a particular focus on what consumers are getting—or, more accurately, what they're not getting—in the settlements. In the cases so far, that's free cookies and discount coupons instead of cash.

I reached out to Burt Rublin (Ballard Spahr), who is following these cases. He told me:

“The increasingly proactive role taken by the DOJ in opposing class settlements that involve either coupons or monetary relief for class members that is minor in comparison to the attorneys' fees sought by class counsel represents a clear shot across the bow of the plaintiffs' class action bar. While the very recent amendments to Rule 23 discouraging 'professional' class action objectors may have otherwise emboldened certain plaintiffs' lawyers to enter into 'sweetheart' class settlements with defendants that are better for the plaintiffs' lawyers than the class, the objections by DOJ should give serious pause to any lawyers contemplating such deals, including defense counsel.” 

Who Got the Work?

Another talcum powder trial began on Monday, this time in South Carolina's Richland County Court of Common Pleas. W. Christopher Swett and Nathan Finch (Motley Rice) represent the plaintiff, Beth-Anee Johnson, who was diagnosed in 2016 with mesothelioma after using Johnson & Johnson's baby powder since the 1960s. Leading Johnson & Johnson's legal team are Allison Brown (Weil Gotshal) and Michael Brown (Nelson Mullins). All are talcum powder veterans: A South Carolina case between Nelson Mullins' Brown and the Motley Rice team ended in a mistrial last year, and Weil Gotshal's Brown won a defense verdict in March in New Jersey. This week's trial almost didn't happen: Check out this May 3 ruling by a South Carolina federal judge granting an emergency remand of the case to state court. It's one of thousands of cases that Johnson & Johnson has tried to remove to federal court, in the wake of Imerys Talc America's bankruptcy.

Here's what else is happening:

Calling It: Plaintiffs' attorneys who won a record $925 million jury verdict against a marketing firm under the U.S. Telephone Consumer Protection Act (TCPA) are asking a federal judge in Oregon for $185 million more in enhanced damages. Lawyers filed May 10 briefs on whether ViSalus Inc., which sells weight loss products, made 1.85 million unsolicited calls to class members “willfully and knowingly” in violation of the TCPA. Simon Franzini  (Dovel & Luner) and Rafey Balabanian (Edelson) represent the plaintiff, Lori Wakefield, and the attorney for ViSalus is John O'Neal (Quarles & Brady).

On the Hill: The U.S. House of Representatives will take up legal matters of interest this week. On Wednesday: The House Committee on Transportation and Infrastructure's Aviation Subcommittee will hold a hearing on the “Status of the Boeing 727 Max,” the grounded aircraft at the center of two recent crashes that killed 346 people. Witnesses include FAA Acting Administrator Daniel Elwell and Robert Sumwalt, chairman of the National Transportation Safety Board. And, on Thursday: The House Judiciary Committee's Subcommittee on Antitrust, Commercial and Administrative Law will hold a hearing called “Justice Denied: Forced Arbitration and the Erosion of our Legal System.” Forced arbitration has been the focus of new Congressional bills and the American Association for Justice. Among the witnesses are Deepak Gupta (Gupta Wessler) and Myriam Gilles (Yeshiva University's Benjamin Cardozo School of Law).

Explosive Cases: Connecticut attorney J. Craig Smith (Koskoff Koskoff & Bieder) filed six lawsuits last week alleging that Pam cooking spray cans exploded, causing injuries. Smith, along with Joseph Lyon (The Lyon Firm) and Peter Flowers and Frank Cesarone (Meyers & Flowers), filed the cases in federal court in Chicago, where defendant Conagra is based. Law isn't the first foray for Smith, 48, who had a previous career as an actor, appearing in the “Roots” sequel “Queen,” a TV miniseries in 1993 that starred Martin Sheen and Halle Berry.

A quick note to my readers: In last week's Critical Mass, the name of Dan Gerber (Rumberger Kirk & Caldwell) was misspelled. I apologize for the error. Thanks for reading Critical Mass, and I'll be back next week!