Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Monsanto takes its first step before a federal appeal court over a Roundup verdict. Johnson & Johnson won the latest talc verdict, but not before accusing plaintiffs' lawyers of misconduct. Find out which firms got appointed to lead the hard disk antitrust MDL.

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

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Seth Waxman

Monsanto Wants to Weed Out Another Roundup Verdict

Bayer's Monsanto has filed its brief before the U.S. Court of Appeals for the Ninth Circuit hoping to reverse the only Roundup verdict so far in federal court. The March 27 verdict, originally for $80 million but later reduced to $25.3 million, "defies both expert regulatory judgment and sound science," according to the Dec. 13 brief by Seth Waxman (WilmerHale). Plaintiff Edwin Hardeman, who brought in Leslie Brueckner (Public Justice) on appeal, is due to respond on Jan. 13.

Monsanto, of course, has appealed two other verdicts in California's state courts. In the first case, which landed a $289 million verdict, lowered to $78 million, the parties have completed briefing. In a Dec. 6 order, the appeals court said, "it is almost certain that the court would have been unable to schedule oral argument before March 2020 even absent Monsanto's request. The court will make every effort to schedule oral argument for March or April 2020." In a May 13 verdict, for $2 billion, later reduced to $86.7 million. Monsanto's brief is due Jan. 20

Johnson & Johnson Wins Verdict After Seeking Mistrial

A California jury came out with a defense verdict this week in the latest trial over Johnson & Johnson's baby powder. The case, in Los Angeles Superior Court, alleged Johnson & Johnson's talcum powder caused the plaintiff to get mesothelioma in 2016. In a statement, Johnson & Johnson said:

"The facts are clear—Johnson's baby powder is safe, does not contain asbestos, nor does it cause cancer, as reflected in more than 40 years of scientific evidence. This is the third straight verdict in favor of Johnson & Johnson, and all verdicts against the company that have been through the appeals process have been overturned."

Joseph Satterley (Kazan McClain), who represented plaintiff Amy Fong, told me in an email:

"During the course of this case the FDA found asbestos in Johnson's baby powder. We are obviously disappointed in the jury's verdict. We will continue to fight on behalf of victims like Amy Fong."

Interesting note: Last week, Johnson & Johnson's attorneys at Kirkland & Ellis accused the plaintiff's lawyers of misconduct. The judge refused to grant Johnson & Johnson a mistrial, but Kazan McClain brought in Keker, Van Nest & Peters to respond to the misconduct claims.

Who Got the Work?

Four firms will serve as interim co-lead class counsel in the multidistrict litigation alleging that the manufacturers of hard disk drive suspension assemblies, used in computers and other consumer products, illegally conspired to fix prices. In a Dec. 13 minute order, U.S. District Judge Maxine Chesney of the Northern District of California appointed Robins Kaplan and Zelle LLP to represent end users, and Cuneo Gilbert & LaDuca and Larson King for the retailer plaintiffs.

Here's what else is happening:

Faegre Drinker: Faegre Baker Daniels and Drinker, Biddle & Reath voted to merge, creating a firm they plan to announce on Wednesday that will have 22 offices and combined revenues near $1 billion. The new firm, officially starting on Feb. 1, will be called Faegre Drinker Biddle & Reath. Both firms have represented manufacturers of medical devices and pharmaceuticals.

Equifax Endgame: Lawyers who got a $1.4 billion class action settlement over the Equifax data breach are due in court on Thursday for final approval. Plaintiffs' lawyers are defending their $77.5 million fee request and other aspects of the deal targeted by objectors, who include class action critic Ted Frank. The state of Massachusetts, one of the two states that didn't agree to the deal, also wants changes. Interesting read: Monday's filing by Equifax insisting that, had plaintiffs not settled when they did, the Georgia Supreme Court would have invalidated their negligence claims with its 2019 ruling in Dep't of Labor v. McConnell, a "formidable decision that cuts strongly in Equifax's favor." Oh, and Equifax's consumers faced a "virtually insurmountable hurdle" proving identity theft from the breach.

Not OK: Johnson & Johnson and the state of Oklahoma have both appealed a $475 million opioid judgment to the Oklahoma Supreme Court. In a Dec. 9 brief, Johnson & Johnson laid out 39 reasons why the judgment should be reversed, including the judge's interpretation of public nuisance. Oklahoma AG Mike Hunter, in a Monday filing, argued that the judge should have extended the abatement plan beyond a year. He also sought $468,920 in expenses and costs.

Thanks for reading Critical Mass! I will be taking a break next week. Have a safe and happy holiday!