Welcome to Critical Mass, Law.com’s weekly briefing for class action and mass tort attorneys. Find out the two attorneys who got appointed—and who did not—to lead a potential class settlement over opioids. In the Flint water case, could bringing in settlement counsel get lawyers closer to a deal? Plus, the lawyer who represented Equifax is now handling data breach lawsuits for Capital One.

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

Opioid Judge Names Lead Counsel, Citing Conflicts

U.S. District Judge Dan Polster on Monday appointed two lawyers, Chris Seeger (Seeger Weiss) and Jayne Conroy (Simmons Hanly Conroy) to be the sole representatives for a potential “negotiation” class of 33,000 cites and counties suing opioid companies.

Why? Because, although Polster hasn’t certified such a class, settlement negotiations are ongoing, and neither Seeger nor Conroy has a potential conflict of interest—that is, they don’t represent the states, where attorneys general have adamantly opposed the idea of a “negotiation” class. Then he named the five attorneys on the settlement team who do: Russell Budd (Baron & Budd), Elizabeth Cabraser (Lieff Cabraser), Paul Geller (Robbins Geller), Joe Rice (Motley Rice) and Troy Rafferty (Levin Papantonio). (In a statement filed on Tuesday, Polster clarified that those attorneys “have not done anything unethical or otherwise inappropriate” and that he was just being “extremely careful” to prevent potential conflicts of interest.)

Meanwhile, Polster issued the first summary judgment order ahead of an Oct. 21 bellwether trial, concluding that opioid distributors were required to report suspicious drug shipment orders—a finding that lead plaintiffs’ attorneys called a “significant step forward.” Two defendants, Endo International and Allergan, also agreed on Tuesday to pay $15 million to settle out of the trial.

Sarah London, Lieff, Cabraser Heimann & Bernstein

Could Settlement Counsel Seal a Flint Deal?

Class counsel in the lead case over the water crisis in Flint, Michigan, have sought the appointment of five lawyers to serve as settlement counsel in preparation for a potential agreement. Ted Leopold (Cohen Milstein) and Michael Pitt  (Pitt McGehee) also suggested that retired U.S. District Judge Layn Phillips serve as a “neutral settlement facilitator”—a move that U.S. District Judge Judith Levy said on Monday wasn’t necessary or permissible.

Responses are due on Friday, but one lawyer, Hunter Shkolnik (Napoli Shkolnik), liaison counsel in the Flint case who has battled class counsel over fees, already had this to say: “We fully understand and agree with Judge Levy’s decision not to appoint an additional ‘settlement neutral’ as requested by class counsel. We already have a highly skilled special master, Deborah Greenspan, and two highly respected mediators in Judge Pam Harwood and Sen. Carl Levin. They can guide us to closure.”

Who Got the Work?

Capital One has turned to David Balser (King & Spalding) to represent the financial institution in nearly 40 class actions brought over a data breach that impacted 106 million of its customers. If his name sounds familiar, it’s because Balser represented Equifax in legal actions over its data breach that settled last month. Balser filed an appearance on Monday before the U.S. Judicial Panel on Multidistrict Litigation, as did lawyers for two other defendants: Tyler Newby (Fenwick & West) for Amazon Web Services, and Michael Rhodes (Cooley) for GitHub Inc.  

Here’s what else is happening:

Foul Play? The U.S. Court of Appeals for the Ninth Circuit certified a class action seeking minimum wages for minor league baseball players—but not without Judge Sandra Ikuta taking a swing at the reasoning in a dissent. Ikuta shocked the class action bar with her 2018 opinion in In re Hyundai decertifying a class settlement for failing to analyze the differences in various state laws (which an en banc panel reversed this year). In the baseball case, Ikuta made similar remarks about the majority’s opinion, portending “dire consequences for employers and employees.”

Merck Mentions: Sanofi-Aventis tried to use the U.S. Supreme Court’s ruling this year in Merck Sharp & Dohme Corp. v. Albrecht to delay the first bellwether trial over breast cancer drug Taxotere, set for Sept. 16 in New Orleans. Its lawyers had some help from a federal judge in Boston who delayed the first bellwether trial over GlaxoSmithKline’s anti-nausea drug Zofran, also planned for Sept. 16, because of the Supreme Court’s decision on federal preemption. As to Taxotere, U.S. District Judge Jane Milazzo denied the request at a Friday hearing.

On Air: Want to come up with a creative way to reach potential class members? Peter Prieto (Podhurst Orseck) worked with settlement administrator Patrick Juneau (Juneau David) to design this consumer awareness campaign about recalled Takata airbags—and they used “Driving Miss Daisy” actor Morgan Freeman to narrate. Juneau told Law.com “there is no voice more iconic or authoritative or trustworthy than Mr. Freeman’s.” Here is the ad.

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