Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's happening this week: Lawyers suing over opioids pitched an innovative idea for settlement…but will it work? Another lender has sued Tom Girardi claiming he and wife Erika Jayne, of “Real Housewives” fame, used a law firm loan to “sustain their lavish lifestyle.” Who is representing Mattel in the Rock 'n Play recall lawsuits?

I welcome your thoughts or comments, so please feel free to reach me at [email protected], or find me on Twitter: @abronstadlaw

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Will an Opioid “Class” Make the Grade?

Lawsuits filed over the opioid crisis took a dramatic turn after lead plaintiffs' attorneys in the multidistrict litigation filed a motion for class certification on Friday. Here's my story on the move, which was designed to get cities and counties closer to settling their cases against opioid companies.

The motion goes before U.S. District Judge Dan Polster on June 25. The class would encompass potentially 24,500 cities and counties across the country.

One group it won't include: the states. In fact, the proposal identifies three people who would negotiate payouts with state attorneys general. Why does that matter? Check out what's happening in Oklahoma, where nine cities and the governor have elbowed into the $85 million settlement between the state's attorney general and opioid maker Teva Pharmaceuticals.

Still, the “negotiation class” idea raised eyebrows in the class action bar. It's an idea floated by Francis McGovern (Duke Law), one of three special masters in the case, and William Rubenstein (Harvard Law), who McGovern hired as a consultant (they have a draft 2019 law review article on the topic). I reached out to two law professors about the idea, and here's what they said:

Elizabeth Burch (University of Georgia School of Law): “There are upsides to the proposal, to be sure. It gives voice to some of the cities and counties who have long felt alienated by the MDL process. But there are plenty of groups left out: the tribes, NAS babies, the state attorneys' general. So I don't know that it will produce the total peace that most defendants are after. And some defendants (like Johnson & Johnson) may prefer to test the merits of plaintiffs' claims, particularly on public nuisance.”

Andrew Bradt (Berkeley Law): “This is an innovative approach that scholars have been turning over for a long time. There's a lot to recommend it, but it will be a close call whether it can surmount the doctrinal hurdles of Rule 23—particularly predominance under Amchem. Despite these obstacles, the stars might be aligned here—you've got the right academics, lawyers appearing before a motivated and creative judge who wants to make something happen.”

One More Girardi Lender Throws Down the Gauntlet

Another lender has lawyered up against Tom Girardi and, this time, his wife, “Real Housewives of Beverly Hills” star Erika Jayne. My colleague Ross Todd has this story about a lawsuit filed by Arizona's Stillwell Madison (repped by DLA Piper) against Girardi (Girardi & Keese), claiming the couple owes more than half of a $5 million law firm loan they used to “sustain their lavish lifestyle and maintain their glamorous public image.”

Girardi already faces a lawsuit brought by a California-based lender, Law Finance Group, over a $15 million loan. The new suit alleges Girardi failed to mention the default of that loan when negotiating monthly payments with the Arizona lender.

Ross told me:

“These lawsuits are giving us a very intimate look at what these lender agreements look like. I link to the docs and the back-and-forth between Girardi and the lender about the forbearance agreement, which were included as attachments to the complaint. It's probably not the way that those in the litigation finance industry want us learning about what these agreements look like. But then again, it's hard for me to say if these are typical run-of-the-mill agreements or ones that are tailored to Girardi and his firm.” 

Who Got the Work?

Mattel's Fisher-Price has brought in a team from Manatt, Phelps & Phillips to handle a growing number of lawsuits over its recall of Rock 'N Play sleepers. Adrianne Marshack, a partner in Costa Mesa, California, and Craig de Recat and Matt Kanny, both in Los Angeles, appeared for Mattel last month in its motion to coordinate more than a dozen lawsuits into multidistrict litigation in the Central District of California. The U.S. Judicial Panel on Multidistrict Litigation has scheduled the cases for its July 25 hearing in Portland, Oregon.

Here's what else is happening:

Monsanto's Mark: Monsanto lodged its first post-trial attempt at reversing a $2-plus billion Roundup verdict. In dual motions filed on Monday, Monsanto, now owned by Bayer, blamed “repeated misconduct by plaintiffs' counsel” for the verdict, which includes $2 billion in punitive damages and $55 million in compensatory damages.

Apple Sanctions: Joe Cotchett and Mark Molumphy (Cotchett Pitre) were sanctioned on Friday for disclosing confidential information in the iPhone throttling case against Apple. U.S. District Judge Edward Davila stopped short of disqualifying both of them from their lead counsel positions, but he trimmed their potential attorney fees and ordered that Cotchett must get court permission before filing anymore motions.

Tadler Takes Off: Just 18 months after Sanders Phillips Grossman joined with Milberg, partner Ariana Tadler has left to start her own firm. Tadler announced on Tuesday that she and three other lawyers would be leaving Milberg Tadler Phillips Grossman to start Tadler Law, a “boutique class action and complex litigation firm” with offices in New York and San Francisco. A.J. de Bartolomeo, Henry Kelstonand Melissa Clark left with her, while Glenn Phillips will take over management of what is now Milberg Phillips Grossman.

Thanks for reading Critical Mass! I'll be back next week.