Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Lawyers who got the $1.4 billion class action Equifax settlement want $77 million in fees, the largest ask among data breach cases. A bankruptcy judge is set to hear arguments today on Purdue's plan to halt opioid lawsuits. Michigan's attorney general has brought in these law firms as outside counsel in potential litigation over opioids and PFAS.

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

Kenneth Canfield of Doffermyre Shields Canfield & Knowles

59 Firms Want $77M for Equifax Settlement

Lawyers who got a $1.4 billion class action settlement this year over the Equifax data breach have asked for $77.5 million in attorney fees. The fees are for 13 firms leading the case, plus another 46 that worked with them (check out Exhibit D to the motion, which lists all the firms based on their hours and lodestar).

It's the largest fee request in a data breach settlement, but it's also the largest data breach settlement. The motion, in fact, points out that the fees represent only 20.4% of the $380.5 million cash fund, and the settlement has other benefits such as credit monitoring. Final approval is set for Dec. 19.

What to watch: Lawyers say the U.S. Court of Appeals for the Eleventh Circuit, in approving fee awards, has discouraged relying on the lodestar, which in this case totaled more than $21 million. In July, however, a panel reversed a $15.3 million fee award in a data breach settlement with Home Depot, in part based on a lodestar of less than $12 million. Also, remember in the Yahoo case, lawyers had to recraft their settlement after the judge criticized their "unreasonably high" fee request of $35 million, and their use of 32 law firms. There already are opponents to the Equifax deal. David Noll (Rutgers Law School) wrote on Twitter: "They should award them $77 million in free credit monitoring." I asked him to elaborate on the Equifax deal, which he called an "enormously disappointing settlement" that the judge should reject.

"In my view, the settlement is carefully designed to make it look as if large amounts of money are being transferred when in fact the cash benefits to consumers are de minimis. Equifax is the Titanic of data breaches. When one strips out difficult-to value forms of in-kind relief, class counsel barely beat the $2/class member settlements that seem to be the norm in this area."

Divergent Paths in Purdue Bankruptcy

The judge in Purdue Pharma's bankruptcy could decide today whether to extend an injunction that would halt lawsuits against the opiate pharmaceutical manufacturer.

Why it matters: Many states, as well as cities and counties, have sued Purdue and its founders, the Sackler family, over the opioid crisis. On Sept. 15, Purdue filed for Chapter 11 bankruptcy and moved immediately for an injunction that would halt more than 2,600 opioid cases against it and the Sacklers. That prompted a backlash from 25 states, the District of Columbia and hundreds of cities, counties and other governments.

What's happening today? U.S. Bankruptcy Judge Robert Drain (Southern District of New York) granted a limited stay over the cases on Oct. 11. That order runs out today, when the judge has scheduled a hearing on the injunction. On Monday, the District of Columbia and 24 states volunteered to extend the temporary injunction order until Dec. 19 to give them time to develop an emergency fund, appoint a monitor and publicly release Purdue's documents, among other things. "The states believe that each of these efforts has the potential for achieving meaningful progress in the next several weeks that will benefit the public and the bankruptcy case," wrote Andrew Troop (Pillsbury Winthrop).

Meanwhile: The state of Arizona, repped by Ashley Keller (Keller Lenkner) and William Consovoy (Consovoy McCarthy), has asked the bankruptcy judge to exempt its filing before the U.S. Supreme Court from any injunction. (Arizona Attorney General Mark Brnovich petitioned the Supreme Court to intervene in its case against Purdue; Purdue counters the Supreme Court has no jurisdiction over the case.) Purdue, on Monday, called Arizona's request "untimely and procedurally improper."

Who Got the Work?

Michigan Attorney General Dana Nessel has hired outside counsel to handle potential lawsuits over two mass torts: opioids and a contaminant called PFAS (per- and polyfluoroalkyl substances), found in firefighting foam and other products. According to an announcement last month,the AG selected a team led by Baron & Budd, Levin Papantonio and Sam Bernstein Law Firm to spearhead possible opioid lawsuits. The state also chose DiCello Levitt Gutzler, Fields PLLC and Keating Muething & Klekamp, in a potential case over PFAS.

Here is what else is happening:

Screen Time: The U.S. Court of Appeals for the Ninth Circuit struggled to understand Microsoft's employment practices during oral arguments in a class action alleging the software giant discriminated against female employees in pay and promotions. The plaintiffs, represented by Anne Shaver (Lieff Cabraser), are appealing a 2018 decision rejecting certification of a class of more than 8,600 software engineers and others. Circuit Judge Johnnie Rawlinson, citing the U.S. Supreme Court decision Walmart v. Dukes, repeatedly asked her to identify the policy at issue. Lynne Hermle (Orrick) represented Microsoft.

Risperdal Recusal: A Philadelphia judge refused to recuse himself from the $8 billion Risperdal trial after Johnson & Johnson's lawyers complained that he high-fived jurors. "The bottom line is you have to take some responsibility for an $8 billion verdict by looking at the way the case was tried," Philadelphia Court of Common Pleas Judge Kenneth Powell told defense attorney David Abernethy (Drinker Biddle). Powell also said the allegations against him were "fabricated," part of a "concocted story," and could become the subject of disciplinary proceedings.

Talc Tears: My colleague Greg Land got a chance to talk to three jurors who failed to reach a verdict in a talcum powder trial in Georgia last month against Johnson & Johnson. Despite being deadlocked 10-2, jurors told him they were "shocked" when Fulton County State Court Judge Jane Morrison declared a mistrial. "We were upset and on the verge of tears," said one juror. "We'd been in that courtroom nearly a month, and we wanted to resolve the issue."

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