Welcome to Critical Mass, Law.com’s weekly briefing for class action and mass tort attorneys. The plaintiffs’ bar denied talk about a possible $8 billion Roundup settlement. Does Walmart face potential liability in the El Paso mass shooting?E-cigarette maker JUUL turned to this firm to defend 10 lawsuits over its marketing.

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

(L to R) Trial team Jennifer Moore, Moore Law Group and Aimee Wagstaff, Andrus Wagstaff, after their $80 Million verdict against Monsanto. Photo: Jason Doiy/ALM

Plaintiffs Lawyers Rebuff Report of Roundup Deal

$8 billion. That’s the dollar figure floating around for a potential settlement of lawsuits brought over Monsanto’s Roundup herbicide—at least, according to this Bloomberg report. The article says Bayer, which now owns Monsanto, made the proposal in an effort to resolve about 18,000 Roundup lawsuits, but plaintiffs’ lawyers insisted they won’t take less than $10 billion.

The news sent Bayer’s shares soaring, but it also prompted an immediate denialfrom Ken Feinberg (Law Offices of Kenneth R. Feinberg PC), a mediator appointed in the multidistrict litigation, where 1,300 of the lawsuits are pending in San Francisco federal court. Plaintiffs’ lawyers also were quick to respond.

I got this email from Maryssa Simpson (Potts Law Firm):

“To our knowledge, none of the law firms representing Roundup plaintiffs have given any indication that the cases filed in the MDL in San Francisco or elsewhere will be settling soon. We are pushing our cases currently on file towards trial and, given that Bayer has lost three trials in a row to the tune of hundreds of millions in verdicts, it makes sense for the company to float the idea of a settlement at this stage.”  

The next Roundup trial, planned for Aug. 19 in Missouri state court, also got rescheduled for Jan. 27. I reached out to Aimee Wagstaff (Andrus Wagstaff), who represents the plaintiff in that case and is co-lead counsel in the MDL. She told me:

“The 8 billion is a false rumor generated by, who knows? I am on the settlement team, and, to date, Monsanto has not offered any money to resolve these cases. None. To be clear, no money is on the table and we haven’t discussed any terms of a global settlement. Plus, it will take way more than $8 billion to resolve this litigation.”

Flowers, posters, toys and other memorabilia left by shocked supporters of the victims of the El Paso Walmart shooting on Aug. 3. Photo: Grossinger/Shutterstock.com

Why Walmart Could Get Sued Over El Paso

Plaintiffs’ lawyers are fielding calls from victims and family members of the 22 people killed in the Aug. 3 shooting at a Walmart in El Paso, Texas. According to this story by my colleague Angela Morris, lawyers are most likely going to target the gun seller (case in point: the Nevada shop that sold an assault-style rifle to the gunman who killed three people last month at a garlic festival in Gilroy, California, now has a GoFundMe page that’s raised more than $4,000 for his legal defense).

But that doesn’t mean Walmart is off the hook. Lawyers told Angela that Walmart didn’t have armed guards at its El Paso store, despite having them at others. It’s similar to an argument raised by the widow of a man shot and killed last year in a Kroger in Jeffersontown, Kentucky, who sued the grocery chain this month for not having a policy that limited the guns that consumers could bring into the store.

Kevin Boyle (Panish, Shea & Boyle), a lead plaintiffs’ attorney suing MGM over the 2017 shooting at the Mandalay Bay in Las Vegas that killed 58, said similar allegations could be made against Walmart.

“I would also imagine allegations that there was no security guard and that there should be metal detectors in the entrances that would alert on the presence of the amount of metal that is in a gun (so it would be set not to alert on keys and a phone—but only on more metal like there would be in a gun).”

Who Got the Work?

Austin Schwing (Gibson Dunn) is representing JUUL Labs Inc. in 10 lawsuits across the country alleging the e-cigarette maker failed to warn about the addictive nature of its products, which contain nicotine, and targets children in its marketing. He has appeared in many of the suits but, on July 29, brought a motion before the U.S. Judicial Panel on Multidistrict Litigation to coordinate all the lawsuits in San Francisco, where JUUL is based. Schwing, a San Francisco partner who is co-chair of the Consumer Class Action Subcommittee of the American Bar Association, was joined in the motion by partners Charles Stevens, Winston Chan, Deborah Stein and Joshua Dick, of counsel.

Here’s what else is happening:

Face Value: Facebook’s “Tag Suggestions” feature, which uses facial recognition technology, could “violate the plaintiffs’ substantive privacy interests,” according to a U.S. Court of Appeals for the Ninth Circuit ruling last week. The ruling affirmed certification of a class action of Facebook users brought under the Illinois Biometrics Information Privacy Act. Facebook, backed by the U.S. Chamber of Commerce, had tried to argue the plaintiffs suffered no harm.

Boston Bound: Shook, Hardy & Bacon continues to grow, opening its third office this year in Boston. A group of four lawyers in Philadelphia and five in Boston joined Shook from Philadelphia-based White and Williams, where they practiced in environmental and toxic tort litigation. Boston partner Richard Campbell will become managing partner of the new office.

Mesh Melee: Cleveland plaintiffs’ firm Anderson Law Offices has petitioned the U.S. Court of Appeals for the Fourth Circuit to intervene in an ongoing fight over an estimated $550 million in common benefit fees to 94 law firms in the transvaginal mesh litigation. Anderson Law Offices is one of four law firms that objected to their shares of the fees, accusing lawyers on the fee and cost committee of enriching themselves. Benjamin Anderson, founder of the firm, which is set to receive $7.2 million, is a member of the plaintiffs’ steering committee.

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