Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Here's what's going on: Several state AGs with lawsuits over the opioid crisis have balked at Insys' bankruptcy plans. Boeing wants to MDL lawsuits brought over the grounded 737 Max 8 aircraft. A federal judge reviewing an $80 million Roundup verdict called Monsanto “pretty crass” in how it dealt with cancer claims.

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Bankruptcy Battles Over Opioid Lawsuits

Last month's Chapter 11 bankruptcy of Insys Therapeutics triggered outcries from several state attorneys general with pending suits against the opioid company. A federal bankruptcy judge in Delaware is hearing arguments this month.

At a hearing yesterday: AGs from Minnesota, Maryland, New Jersey, New Yorkand Arizona insisted that the automatic stay of bankruptcy shouldn't apply to their cases. Both Minnesota and Maryland have administrative trials starting in August and September.

One state that's not objecting: Florida, which cut a deal with Insys to hold off on its claims.

But Florida's AG has another beef: a proposal from Insys to estimate the costs of 1,000 lawsuits against it. Attorneys general from New Jersey, New York, Kentucky, Rhode Island and Washington have joined Florida in calling this plan premature. It's scheduled for a July 8 hearing.

I spoke with Kenneth Ayotte (Berkeley Law), who said the states might have a “good chance” challenging the bankruptcy stay. As for the estimation of claims, he said this might be what Insys has in mind:

“The whole idea of the estimation is to prevent the case from being delayed. You need to reorganize. You need to have a creditor vote, and you can't conduct a vote unless you estimate the claims. If you're conducting a 363 sale, a sale of the assets free and clear, you don't have to do that. They may have a weak argument as to why they need to do the estimation now.”

Boeing Wants MDL Over Max 8 Crash Lawsuits

Weeks after agreeing to mediate lawsuits brought over last year's crash in Indonesia, Boeing moved to coordinate dozens of other cases involving the March 10 crash in Ethiopia that grounded the 737 Max 8 aircraft. On June 19, Boeing, repped by Mack Shultz (Perkins Coie), moved to create multidistrict litigation over the Ethiopia crash in the Northern District of Illinois.

Boeing estimated that there were 51 lawsuits filed on behalf of passengers. Here's what's odd: All but three cases are already in the Northern District of Illinois.

The others are in South Carolina. Mary Schiavo (Motley Rice), whose firm filed those cases, told me Boeing wants an MDL for four reasons:

“1. For the convenience of Boeing's lawyers; 2. Boeing often chooses to defend in Chicago where its corporate headquarters is located; 3. South Carolina law is much more favorable to the families of the passengers as it allows unlimited punitive damages if the federal criminal probe against Boeing is successful, so Boeing would not want to be subjected to a South Carolina jury with SC punitive damages law; and 4. because the law provides for a consolidation when more than 75 persons are killed, and thus, Boeing is entitled to an MDL, and therefore we are not going to oppose the MDL consolidation.”

Monsanto “Pretty Crass,” Judge Says

A federal judge appeared unlikely to toss an $80 million Roundup verdict on Tuesday, calling Monsanto “pretty crass” about how it handled claims linking its herbicide to non-Hodgkin lymphoma. At a hearing on Monsanto's motions to reverse the award, U.S. District Judge Vince Chhabria raised questions about the jury's $2 million award in non-economic damages. He also asked about the appropriate ratio between compensatory damages and the jury's $75 million award in punitive damages. While punitive damages were “supportable,” he said, Monsanto's conduct was not “so outrageous” that they shouldn't be reduced.

Here's what else is happening:

Koh's Questions: U.S. District Judge Lucy Koh had more questions for lawyers attempting to get approval of a $117.5 million data breach settlement with Yahoo. After the judge rejected their initial $85 million deal, lawyers were back in court last week with a revised agreement. But Koh still wanted to know why 32 plaintiffs' firms were involved in the case, and she had concerns about the notice to class members.

Down Under: Class actions in Australia have ramped up, spurred by outside litigation funding and government probes into financial firms. According to law professor Vince Morabito (Monash University), 64 class actions were brought in Australia in 2018, with another 18 so far this year. One wrinkle: An upcoming Australia High Court decision on common fund orders could make it more expensive to bring class actions.

What's in a Name? The American Association for Justice took its name to heart and sued a California organization for trademark infringement. The AAJ, which was known as the Association of Trial Lawyers of America until 2006, sued the Association of American Trial Lawyers, which focuses on lawyer rankings such as the “Top 100” or “40 Under 40.” Sacramento personal injury attorney John Steiner (John Steiner Law Offices) registered the mark.

Thanks for reading Critical Mass! Have a good July 4th holiday. I plan to extend the holiday, so my colleague Max Mitchell will be filling in for me next week.