Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening: The U.S. Supreme Court's Home Depot decision hit hard for defendants. In the nation's first opioid trial, a lawyer for the Oklahoma AG opened with, “If you oversupply, people will die.” A judge in the 3M earplug cases appointed 53 lawyers to leadership posts.

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SCOTUS Divided Over CAFA “Defendant.”

The U.S. Supreme Court came out with its ruling in a case closely watched by the class action bar—and sided with the plaintiff.

Here is my colleague Tony Mauro's story on the 5-4 decision in Home Depot v. Jackson, written by Justice Clarence Thomas. The case centered on whether Home Depot could remove a class action to federal court under both the federal removal statute and the Class Action Fairness Act. The problem? Home Depot wasn't actually the defendant in the original case. The defendant, George Jackson, sued by Citibank in a debt collection, had brought Home Depot into the case when he filed a class action against the retailer in his counterclaim.

Plaintiffs' attorney Aaron Zigler (Korein Tillery) sent me this statement:

“The interesting part of today's decision is not the result that is consistent with long-standing federal practice but is that Justice Thomas found the language of the statute so clear that he was unwilling to join his conservative colleagues, who found his reading to be irrationally compelling a bizarre result.”

In a dissent, Justice Samuel Alito appeared particularly concerned about the language in CAFA that says “any defendant” can remove a class action. Matthew Waring (Mayer Brown) told me:

“CAFA played an important role in the dissent in two ways. The first way is Justice Alito did talk about the broader language and use of the word 'any.' But, more generally, he was concerned from a policy point of view of what the effect would be of holding that these kinds of counterclaim third-party class actions couldn't be removed. He made the point that what you have now is a consumer who's suing a business in a large class action. That's exactly the sort of class action that Congress would have wanted to be in federal court under CAFA. But now it doesn't fall within CAFA because of the way it was pled as a counterclaim.”

Opioid Trial Opens in Oklahoma

The first trial in the nation over an epidemic of overdoses and deaths tied to opioids began on Tuesday in Oklahoma. Here's my coverage of the trial between Oklahoma Attorney General Mike Hunter and Johnson & Johnson, which ended up being the sole defendant after Purdue Pharma settled in March for $270 million and Teva Pharmaceuticals reached an $85 million deal over the weekend.

The lawyers had a lot of colorful charts and slogans. Hunter and three other lawyers made opening statements for the state, which has asked for tens of billions of dollars in abatement costs. Brad Beckworth (Nix Patterson) repeated the phrase, “If you oversupply, people will die.” Michael Burrage and Reggie Whitten (Whitten Burrage) also gave opening statements for the state. Johnson & Johnson attorney Larry Ottaway (Foliart Huff Ottaway & Bottom) capped his presentation with: “Why are we here? Because when you're right, you fight.”

Why is the case important? Because looming in the background are more than 1,600 other lawsuits by states, cities and counties, against opioid manufacturers and distributors. Earlier this month, a judge dismissed one of them, brought by the state of North Dakota, in a major victory for Purdue. “The state's effort to hold one company to account for this entire, complex public health issue oversimplifies the problem,” wrote South Central Judicial District Judge James Hill.

Who Got the Work?

A federal judge in Florida appointed 53 lawyers to spearhead hundreds of lawsuits brought by U.S. military members over 3M's dual-ended Combat Arms Earplugs. U.S. District Judge Casey Rodgers, of the Northern District of Florida, appointed three lawyers as co-lead counsel, with Bryan Aylstock (Aylstock Witkin) at the head. The other two are Shelley Hutson (Clark, Love & Hutson) and Chris Seeger (Seeger Weiss). Rodgers also appointed two attorneys as co-liaison counsel, seven lawyers on an executive committee and 14 on a plaintiffs' steering committee, plus lawyers on nine subcommittees. Check out her order here. Rodgers made some unusual moves: To decide leadership appointments, she created a panel that heard two days of presentations last week.

Here's some more to know this week:

Avenatti's Out: A federal judge in California replaced embattled plaintiffs' attorney Michael Avenatti as lead counsel in a class action after finding “considerable doubt” that he could fairly represent the class. Avenatti, who faces criminal charges of tax and bank fraud, had agreed to relinquish his lead role to two other lawyers in the case, but a receiver in charge of pursuing a $10 million judgment against Eagan Avenatti, his shuttered law firm, had attempted to put a competing group of lawyers in charge. (Avenatti, by the way, brought in criminal defense lawyers Scott Srebnick and Jose Quinon to represent him in New York, where he pleaded not guilty on Tuesday to charges of extorting Nike and stealing from his former client, ex-porn star Stormy Daniels.)

Daubert Do-Over: The Florida Supreme Court reversed its stance on expert testimony, adopting the Daubert standard last week in the appeal of an $8 million asbestos verdict. In a per curiam opinion, the high court ruled that “grave constitutional concerns” over the more restrictive standard that permeated last year's decision now “appear unfounded.” James Ferraro  (The Ferraro Law Firm) called the move “a dark day in jurisprudence,” while defense attorney Elliot Scherker (Greenberg Traurig) said: “I don't see this as a sea change.”

Beer None: The maker of Kona Brewing Co.'s line of beers settled a class action alleging that its brews weren't, in fact, made in Hawaii. Craft Brew Alliance Inc. agreed to list on product packaging where its beer was actually made. Under the deal, Kona has the right to terminate the agreement should consumers submit more than 1 million claims for refunds of $10 to $20 each. The case made the U.S. Chamber Institute for Legal Reform's annual list of the 10 “most ridiculous” lawsuits in 2018.

Thanks for reading Critical Mass! A quick note to my readers: My colleague Max Mitchell will be filling in for me next week.