Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. An appeals court looked ready to power down a record class of 250 million Qualcomm customers. Two talc trials take off this week. And find out which lawyers will lead the lawsuits over Capital One's data breach.

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

Judge Ryan Nelson of the U.S. Court of Appeals for the Ninth Circuit.

Conundrum Over the Qualcomm Class

A record nationwide class of 250 million customers of Qualcomm could shrink after the U.S. Court of Appeals for the Ninth Circuit on Monday appeared more than skeptical about affirming certification.

In 2018, U.S. District Judge Lucy Koh certified a class that covers 1.2 billion cell phone purchases. According to my colleague Scott Graham's story, plaintiffs' attorney Marc Seltzer (Susman Godfrey) got a lot of pushback from Judge Ryan Nelson, a Trump appointee, when trying to convince the panel on Monday why California law applied to a nationwide class: "All states have treated this differently, and now we have California coming in and saying we're going to rule the entire United States, literally," said Nelson, whose chambers are in Idaho. "You understand why those who don't live in California get a little bit frustrated with that kind of approach?"

The Ninth Circuit panel, however, didn't rule out the likelihood that a California-only class, or even one including other states with similar antitrust laws, could pass muster—a case that could still be worth potentially billions of dollars.

Addressing commonality, Robert Van Nest (Keker, Van Nest) argued that Koh had relied on the plaintiffs' "pass-through" theory, which other courts have rejected. Nelson called those arguments "really strong," but emphasized that the standard of review Qualcomm faced on appeal was whether Koh abused her discretion.

Scott told me:

"I've said before that these appeals will pit the irresistible force of Qualcomm's appellate lawyers against the immovable object of Koh's detailed findings of fact. I felt as if we were already getting a taste of that Monday."

Talc Trials to Watch….

Juries in California and Missouri could come out with the next verdicts over Johnson & Johnson's baby powder as two trials begin this week.

In California: Lawyers gave opening statements on Monday and Tuesday in Alameda County Superior Court in a case involving Linda O'Hagan, diagnosed with mesothelioma. Her attorneys, Moshe Maimon (Levy Konigsberg) and John Langdoc (Kazan McClain), face off against Morton Dubin (Orrick) and Julia Romano (King & Spalding) for Johnson & Johnson, and Deborah Smith (Lewis Brisbois) for Rio Tinto Minerals. Talcum powder trials in Alameda County Superior Court this year have ended in verdicts of $12 million and $29 million.

In Missouri: Opening statements are expected Friday in the first St. Louis trial since a jury in 2018 slapped Johnson & Johnson with a $4.7 billion verdict for 22 women with ovarian cancer. This week's trial involves Vickie Forrest, one of 13 women whose case the Missouri Supreme Court halted earlier this year. Forrest, who lives in St. Louis, is represented by Ted Meadows and David Dearing (Beasley Allen), Allen Smith (The Smith Law Firm) and Michelle Parfitt (Ashcraft & Gerel). Johnson & Johnson's lawyers are Allison Brown (Skadden) and Michael Brown (Nelson Mullins).

Who Got the Work?

Three lawyers with experience in data breach class actions will lead the multidistrict litigation over last year's cyberattack against Capital One that compromised the personal information of 100 million customers. U.S. District Judge Anthony Trenga, of the Eastern District of Virginia, appointed Norman Siegel (Stueve Siegel Hanson), Karen Riebel (Lockridge Grindal Nauen) and John Yanchunis (Morgan & Morgan) as co-lead counsel for more than 60 lawsuits. "The court will maintain under advisement whether to appoint a plaintiffs' steering committee," the judge wrote in his Monday order.

Here's what else is happening:

Opioid Opt-Outs: A novel "negotiation" class of governments with legal claims over the opioid crisis prompted 541 cities, counties and others to opt out—a response rate that co-lead interim class counsel Jayne Conroy (Simmons Hanly Conroy) called a "landslide endorsement." The deadline to opt out of the class, certified by a federal judge in hopes of reaching a global opioid settlement with drug makers, was Nov. 22. Those governments that remained in the class represent more than 98% of the 34,000+ potential class members.

An EU Class? The European Union began talks to craft legislation that would allow consumers in its 28 member nations to bring consumer class actions. Nine European Union countries do not allow consumers to bring class actions, while 11 have restrictive rules that deter consumers from filing collective claims. The legislation, known as the Representative Actions Directive, has drawn criticism from business groups and support from consumer organizations.

"I'm Already Mad": A federal judge sanctioned government attorneys $5,000 for discovery abuses in the litigation over a mass shooting that killed 26 people in 2017 at a church in Sutherland Springs, Texas. The lawsuits allege that failures in the national background check system allowed the shooter, a dishonorably discharged Air Force veteran, to buy weapons illegally. U.S. District Judge Xavier Rodriguez minced no words after government lawyers' refused to disclose the names of Air Force personnel who should have flagged the shooter's convictions and mental health treatment. "I need to take a break because I'm already mad," the judge told them. "You need to call your supervisor and let them know the court is entertaining sanctions against you," he said.

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