Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. School districts swarmed against Juul, filing new lawsuits over its marketing of e-cigarettes to students. Sandy Hook victims brought in this high-profile lawyer in their SCOTUS battle against Remington. A Philadelphia jury awarded $8 billion in punitive damages in a trial over Johnson & Johnson's Risperdal.

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Juul Sparks Suits from School Districts

Three school districts have sued Juul for marketing its electronic cigarettes to their students. The suits, filed by a group of firms led by Beasley Allen and Wagstaff & Cartmell, allege that Juul Labs created a public nuisance. The suits, brought in Kansas, Missouri and New York, are the first school districts to sue Juul, which faces more than 55 lawsuits, coordinated in multidistrict litigation, by individuals with health problems and consumers alleging Juul's marketing misled them about the addictive nature of its e-cigarettes.

I caught up with Joseph VanZandt (Beasley Allen), who said three school districts are just the "tip of the iceberg" in the litigation against Juul.

"Their conduct has created a public nuisance. They really sparked this fire that's being called a vaping epidemic, and it hit schools the worst. Schools are having to spend a lot of time and resources to deal with the problem that's rampant in schools … That's similar to the opioid situation, where you have states, cities and counties, who are spending large amounts of money to deal with the problem the opioid companies created."

But wait: in the opioid cases, there are dozens of defendants, many of which are large pharmaceutical companies. VanZandt reminded me that Altria Group, the parent company of Philip Morris, has a 35% stake in Juul, and told me:

" We think Altria will be part of this litigation as a whole, whether it be the individual cases or government cases. We do think this will expand over time to additional defendants. There are more e-cigarette companies than Juul."

Donald Verrilli Jr. Courtesy photo
 

Sandy Hook Victims Armed for Supreme Court Battle

The families of victims of the 2012 shooting at Sandy Hook Elementary have retained former U.S. Solicitor General Donald Verrilli in their U.S. Supreme Court fight against Remington. Verrilli (Munger Tolles) filed a brief last week opposing Remington's argument that federal law shielded it from liability over the shooting, which killed 20 children and six educators at the school. Remington petitioned the Supreme Court after the Connecticut Supreme Court found the case could proceed under a state law exception to the federal statute, called the Protection of Lawful Commerce in Arms Act.

Speaking of mass shooting lawsuits: MGM agreed last week to pay up to $800 million to settle lawsuits brought over the 2017 shooting at its Mandalay Bay Resort & Casino in Las Vegas that killed 58 and injured hundreds. Robert Eglet (Eglet Adams), who held a press conference with Dan Robinson (Robinson Calcagnie) and Kevin Boyle (Panish, Shea & Boyle), said the total number of potential claimants was about 4,400, represented by more than 65 law firms. The deal also resolves claims against two other defendants: event promoter Live Nation and security firm Contemporary Services Corporation. One defendant that's not part of the deal? Slide Fire Solutions LP, the bump stock manufacturer that the Brady Center to Prevent Gun Violence sued in this class action. On Sept. 26, a federal judge in Nevada dismissed all but one of the claims: negligence.

 

Who Got the Work?

A Philadelphia jury slammed Johnson & Johnson with an $8 billion verdict in the first trial in Pennsylvania to consider punitive damages over its anti-psychotic drug Risperdal. A jury in 2015 awarded $1.75 million in compensatory damages, but the case was allowed to add punitive damages after the Pennsylvania Superior Court last year reversed a lower court's ruling that barred such recovery. Tom Kline (Kline & Specter) and Jason Itkin (Arnold & Itkin) represented the plaintiff, while Ethel Johnson (Morgan Lewis) repped Johnson & Johnson.

Here's what else is happening:

MDL Melee: General counsel from 48 companies submitted a letter to a federal rules advisory committee supporting proposed changes to multidistrict litigation, which they said come "at a point of crisis." The Oct. 3 letter points to three types of reforms: weeding out "meritless" claims with a new rule, allowing interlocutory appeals, and requiring disclosures of third party litigation funding. In-house lawyers included those from Johnson & Johnson, Pfizer and Bayer. The letter joins other business groups, including Lawyers for Civil Justice and the Washington Legal Foundation, which filed a Sept. 23 letter, in supporting similar MDL reforms.

Opioids on Appeal: The U.S. Court of Appeals for the Sixth Circuit has at least four petitions before it that could upend the opioid litigation: Two seek to unravel certification of a "negotiation" class of more than 33,000 cities and counties suing opioid companies, another hopes to halt this month's trial, and one wants to boot U.S. District Judge Dan Polster from the multidistrict litigation. Chris Seeger (Seeger Weiss), co-lead counsel for the "negotiation" class, responded this week to the dual petitions challenging certification, which he called a "delaying tactic" and premature. On Tuesday, lead plaintiffs' lawyers in the MDL opposed a bid from the defendants for a stay that would halt this month's trial pending a decision on Polster's recusal. "People are dying while the counties scramble to obtain the resources to fight the epidemic," they wrote.

Bitter Aftertaste: The U.S. Court of Appeals for the Eleventh Circuit granted en banc review of a decision that business groups called a "dramatic departure" on standing under the U.S. Supreme Court's holding in Spokeo v. Robins. The 2018 decision, which was amended on April 22, found that a customer of Godiva Chocolatier had standing to sue after the store gave him a receipt that showed 10 digits of his credit card number in violation of the Fair and Accurate Credit Transactions Act. The case ended up before the Eleventh Circuit after an objector challenged the $6.3 million class action settlement, in part due to standing. Several business groups, such as the National Retail Federation and the U.S. Chamber of Commerce, filed amicus briefs to re-hear the decision, which they claim conflicts with four other circuits.

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