Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. This week, Equifax agreed to pay nearly $1 billion to settle regulatory actions and consumer class actions brought over its massive data breach. Also: Why a judge's tentative plan to reduce a $2 billion Roundup verdict still hurts Monsanto. And, a Delaware federal judge's ruling sends thousands of talc lawsuits back to state court.

Feel free reach out to me with your thoughts or comments. You can email me at [email protected], or follow me on Twitter: @abronstadlaw

 

Equifax's $1.4B Settlement Is Largest Ever for Data Breach

Equifax has agreed to a $1.4 billion settlement in multidistrict litigation over its massive data breach, which impacted 147 million customers. It also agreed to pay $100 million to the U.S. Consumer Financial Protection Bureau and $175 million to 48 states.

Under the deal with its customers, Equifax agreed to spend $1 billion on cybersecurity measures during the next five years and set up a $380.5 million compensation fund. Lawyers have set up a “first-of-its-kind” notice program, spearheaded by President Barack Obama's 2012 campaign manager, Jim Messina, and Matt Garretson, former CEO of the Garretson Resolution Group.

Robin McDonald, who covered the case for Law.com, told me:

“Equifax CEO Mark Begor called it the largest data breach settlement so far – of course, it's the biggest class except for Yahoo, which I think blew out the charts at over a billion.”

Speaking of the Yahoo data breach settlement: On Saturday, U.S. District Judge Lucy Koh granted preliminary approval of the $117 million deal after rejecting a prior version earlier this year.

 

Why a Reduced Roundup Verdict Still Matters

A California judge looked ready to grant a new trial or reduce a $2 billion Roundup verdict after hearing post-trial motions from Monsanto on Friday. The May 13 verdict included $1 billion in punitive damages each to Alva and Alberta Pilliod in a case alleging the herbicide caused both of them to get non-Hodgkin lymphoma.

Plaintiffs lawyers told Alameda County Superior Court Judge Winifred Smith that they would be willing to accept a 9:1 ratio of punitive to compensatory damages– or, around $500 million in punitive damages.

Two lawyers — one for plaintiffs, and one defense — told me it's no surprise that a judge would reduce punitive damages, given due process concerns and U.S. Supreme Court case law. But that doesn't mean the verdicts don't still hurt Monsanto.

George Zelcs (Korein Tillery) told me:

“One of the things it's telling you is you're likely to get whacked with punitive damages in the future. They may not be collectible, but you'll have to spend time on post-trial motions in efforts to reduce punitive damages, or go up on appeal. All of that is adding costs to whatever calculus is down the road on settlement.” Amy Alderfer (Cozen O'Connor) said “there's a cumulative threat.” She added:

“There are many, many cases. So every time this happens, even if you get it reduced, it's a further validation of the story the plaintiffs are telling the jury.”   

U.S. Judge in Del. Rejects J&J's Bid for Federal Talc Forum

Johnson & Johnson lost its bid to transfer 2,400 talcum powder lawsuits from state courts to federal court in Delaware, where supplier Imerys Talc America filed for Chapter 11 bankruptcy earlier this year. Check out CNBC's report on Friday's decision, in which U.S. District Judge Maryellen Noreika said Johnson & Johnson was “patently forum shopping.”

The ruling is significant because verdicts against Johnson & Johnson in cases alleging its baby powder caused cancer have come from juries in state courts, not federal courts. I checked in with plaintiffs' attorney Ted Meadows (Beasley Allen), who told me trials over claims that Johnson & Johnson's talcum powder products caused ovarian cancer are already scheduled in state courts in Georgia, Pennsylvania and Illinois. Here's what he said about the ruing:

“Over the past couple of months, the plaintiffs' bar was able to get probably around 1,000 of those cases remanded already, so cases are starting to get back on trial dockets or discovery dockets. With this ruling, over the course of the next couple of days, you'll see all removed cases will be remanded back to state court.”

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Here's what else you need to know:

Opioid Objections: Objections poured in on Tuesday over a revised motion to certify a “negotiation” class aimed at resolving lawsuits by 24,500 cities, counties and other governments over the opioid crisis. Among those objecting to the proposal, which lead plaintiffs' attorneys in the multidistrict litigation introduced last month, were the pharmaceutical distributors and pharmacies named as defendants, and attorneys general in 39 states. Also, what to watch: lawyers on both sides in the MDL have filed a slew of summary judgment motions ahead of an Oct. 21 trial.

Coming Up: The U.S. Judicial Panel on Multidistrict Litigation will hear requests to create MDLs on Thursday in Portland, Oregon. Among the cases on the docket are lawsuits brought against Mattel's Fisher-Price over its Rock 'n Play recalls. There are also several automotive defect cases, including a new raft of litigation over allegedly faulty airbags. Here's the hearing agenda.

Amazon Appeal: Amazon has asked the U.S. Court of Appeals for the Third Circuit to review its decision finding the online retailer liable for defective products sold by third party vendors on its site. The July 3 ruling, which found Amazon to be a “seller” under Pennsylvania law, made “a sweeping change in Pennsylvania tort law that will alter vast swaths of commerce,” according to the request for en banc review.

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