Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. This week: Class actions hit the courts less than a day after Capital One announced a massive data breach. Monsanto tries again to use an appeals court ruling in a talcum powder case to toss a Roundup verdict. Who are the lawyers behind a $143 million settlement over last year's Massachusetts gas fires?

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Class Actions Chase Capital One Breach 

Plaintiffs' lawyers took less than a day to begin filing class actions against Capital One over a massive data breach announced on Monday.

Capital One said the hack compromised the personal information of 106 million customers and card applicants in the United States and Canada. Federal prosecutors in Seattle arrested a 33-year-old software engineer, Paige Thompson, over the breach. By Tuesday, at least three lawsuits had been filed in federal courts.

Who filed: Abbas Kazerounian (Kazerouni Law Group), Robert Hyde (Hyde & Swigart) and Matt Schultz (Levin Papantonio) filed a class action in the Southern District of California. Linda Nussbaum (Nussbaum Law Group) and Adam Frankel (Greenwich Legal Associates) filed a case in the District of Columbia. And John Yanchunis (Morgan & Morgan) and John Harnishfeger (Murphy, Falcon & Murphy) filed a lawsuit in the Eastern District of Virginia, where Capital One is based. New York Attorney General Letitia James also announced that her office was launching an investigation.

Yanchunis is a leading player in data breach cases: He was on the plaintiffs' steering committee in this month's massive settlement with Equifax (and a note to my readers: I misspoke last week when I said Equifax also agreed to expand the fund by at least another $125 million if all 147 million consumers sign on. My colleague Robin McDonald corrected me that the $125 million goes toward “out of pocket expenses for class members, either for resolving identity theft issues, credit monitoring expenses.”)

As for Capital One, Twitter posts were set alight over this apparent discrepancy in its press release about the breach:

“No bank account numbers or Social Security numbers were compromised, other than: About 140,000 Social Security numbers of our credit card customers About 80,000 linked bank account numbers of our secured credit card customers”

Judge Winifred Smith of the Alameda County Superior Court. (Photo: Jason Doiy/ALM)

Monsanto: If At First You Don't Succeed

Monsanto lost an attempt to toss a $2 billion Roundup verdict by citing a California appeals court ruling over talcum powder—but that doesn't mean it's given up.

The Second District Court of Appeal this month affirmed dismissal of a $417 million talcum powder verdict, for the most part, concluding that Johnson & Johnson simply “drew a conclusion” from the science that was out there about its baby powder and ovarian cancer. Monsanto tried to use that ruling to challenge the Roundup verdict. Last week, Alameda County Superior Court Judge Winifred Smith reduced the award to $86.7 million but found that Monsanto, unlike Johnson & Johnson, manipulated the science about non-Hodgkin lymphoma and its herbicide.

On Monday, Monsanto was back at it again—this time, citing the decision in its appeal of a $289 million Roundup verdict last year in San Francisco Superior Court. In its reply, filed in the First District Court of Appeal by lawyers at Horvitz & Levy and Bryan Cave Leighton Paisner, Monsanto said:

“Monsanto cannot be liable for failing to do that which it could not have done in the absence of EPA approval—change its EPA-approved label to provide a warning that EPA believes is at odds with the science. And under California law, as the Court of Appeal recently held, punitive damages are unavailable as a matter of law where the alleged link between a product and cancer is subject to reasonable scientific and regulatory debate.”

Who Got the Work?

Columbia Gas of Massachusetts agreed to pay $143 million to settle class actions brought over the Merrimack Valley fires and gas explosions last year. The fires killed one person and injured 20. Frank Petosa (Morgan & Morgan), John Roddy (Bailey & Glasser), Elizabeth Graham (Grant & Eisenhofer) and Leo Boyle and Brad Henry (Meehan, Boyle, Black & Bogdanow) negotiated for the plaintiffs. John Rooney (Melick & Porter) and J. Brian Jackson (McGuireWoods) represented Columbia Gas of Massachusetts parent company NiSource.

Here's what else is going on:

No Defense: Lawyers told Law.com there was no wrongful death defense possible for a Florida daycare where a 2-year-old died on Monday after being left in the school's van. “This isn't a grieving parent, relative or friend, who was busy and doing a favor picking up the child,” Christopher Marlowe (Haggard Law Firm) told Law.com. “This company is in the business of, and presumably receiving money for, the professional care of children.” According to KidsandCars.org, 24 children, including the one in Florida, have died in hot cars across the country so far in 2019. On Friday, 1-year-old twins in New York died after their father forgot to drop them off at daycare and left them in the car to go to work.

Sanctions Skirmish: Lawyers on both sides of the multidistrict litigation over 3M's Bair Hugger surgical blankets have lobbed sanctions motions against one another. 3M filed a motion last month alleging lead plaintiffs attorneys Genevieve Zimmerman (Meshbesher & Spence), Gabriel Assaad (Kennedy Hodges) and Kyle Farrar (Farrar & Ball) had disclosed sealed documents. The plaintiffs' lawyers fired back this month with a motion alleging 3M's lawyers, who include Benjamin Hulse (Blackwell Burke), “resorted to fabricating facts.” A federal magistrate judge in Minnesota held a July 16 hearing on both motions.

Talc Tossed: A federal judge in California appeared inclined to dismiss a Prop 65 case against Johnson & Johnson over its talcum powder products. That's even after Johnson & Johnson pleaded for the judge not to dismiss the case. At a hearing on Monday, defense lawyer Elyse Echtman (Orrick) told the judge: “This case has really been driven by the lawyers.” Plaintiffs attorney Mark Lanier (The Lanier Law Firm) told me: “Justice can't be rushed. We need the right parties and we will get the right result.”

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