Happy New Year! Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Another round of Roundup trials are ready for 2020. A last-minute lawyer fight erupts over the USC sex assault settlement. Who got appointed to lead the Juul lawsuits? Feel free to reach out to me with your input. You can email me at [email protected], or follow me on Twitter: @abronstadlaw.

(A note to my readers: In the Dec. 18 emailed version of Critical Mass, I misidentified Leslie Brueckner's employer in a write-up about the Roundup appeal. She is at Public Justice.)

 

 

After California, Monsanto Moves On To Missouri

Lawyers anticipate another round of Roundup trials in early 2020.

So far: Juries in California, in state and federal courts, have awarded $80 million, $289 million and $2 billion verdicts (all later reduced). Monsanto, now owned by Bayer, got a boost this month when the U.S. Justice Department and the U.S. Environmental Protection Agency filed a brief supporting its appeal before the U.S. Court of Appeals for the Ninth Circuit. Seven states, the U.S. Chamber of Commerce, and several other groups also filed briefs.

In 2020: Missouri, home of Monsanto's headquarters, could have its first Roundup trials starting in January. Judges in state courts have scheduled trials for Jan. 21, Jan. 27 and March 30. California also has state court trials set for Jan. 17 and Jan. 24. The next federal trial is on Feb. 10 in San Francisco.

By the way: Earlier this month, federal authorities arrested Timothy Litzenburg, a former lawyer at The Miller Firm in Orange, Virginia, a lead plaintiff's firm in Roundup trials. The feds charged Litzenburg with potential extortion of $200 million in so-called "consulting fees" from a "Company 1," which manufactures a chemical used in Roundup. Here's the charging document, which references in a footnote that The Miller Law Firm sued Litzenburg in 2018 after he "actively began to surreptitiously steal The Miller Law Firm's confidential information and trade secrets." (Reuters has more on that here). I reached out to Michael Miller, founder of The Miller Firm, who told me in an email:

"Mr. Litzenburg was formerly an employee of the Miller Firm who was fired in August of 2018. We understand Mr. Litzenburg was recently indicted for conduct occurring in October and November of 2019. Mr. Litzenburg has nothing whatsoever to do with The Miller Firm LLC nor The Miller Firm LLC with Mr. Litzenburg. We will not comment any further on Mr. Litzenburg's legal troubles."

 

 

Lawyer Clash in USC Sex Assault Class Action

Lawyers are due in court on Jan. 6 for final approval of a $240 million class action settlement with the University of Southern California over its former campus gynecologist, George Tyndall, accused of sexually abusing nearly 18,000 women over a period of 27 years.

In November, interim class counsel—Hagens Berman Sobol Shapiro, Lieff Cabraser Heimann & Bernstein and Girard Sharp—called the settlement, which includes a $215 million cash fund, "the largest-ever class resolution of sexual assault claims." They noted there were no objectors and, according to a Dec. 23 reply, only 801 class members opted out.

But that still appeared to be too many. In a Nov. 26 filing, plaintiffs' lawyer Annika Martin (Lieff Cabraser) sought a "curative notice" to stop attorney Samuel Wong (Aegis Law Firm) from continuing to solicit class members on LinkedIn by making "false and misleading statements" that their identities would be made public if they participated in the settlement. Fong fired back on Dec. 16, calling the allegations "baseless" and insisting that class counsel were misquoting him. "Although the advertisement is not very artfully written and further clarification could help, the advertisement does not say what interim class counsel claims it says," he wrote.

Who Got the Work?

A federal judge appointed 21 lawyers to lead the lawsuits against electronic cigarette maker Juul Labs. In a Dec. 20 order, U.S. District Judge William Orrick appointed four lawyers to serve as co-lead counsel: Sarah London (Lieff Cabraser), Dena Sharp (Girard Sharp), Ellen Relkin (Weitz & Luxenberg) and Dean Kawamoto (Keller Rohrback). Orrick had named those same four lawyers as interim co-leads last month. London had sought a leadership team of 22 lawyers. Khaldoun Baghdadi (Walkup, Melodia) and Leslie LaMacchia (Pulaski Kherkher) will serve as federal/state liaison counsel, and Thomas Cartmell (Wagstaff & Cartmell) as liaison counsel to government entities. The 14-person steering committee includes six women.

Here's what else is happening:

J&J Wins Jury: Johnson & Johnson won another talcum powder verdict, this time in Missouri. A jury in St. Louis, where Johnson & Johnson lost a $4.7 billion talcum powder verdict in 2018, found on Dec. 21 that its baby powder did not cause a woman's ovarian cancer. Allison Brown (Skadden Arps) and Michael Brown (Nelson Mullins) scored the win for Johnson & Johnson in a case brought by Ted Meadows and David Dearing (Beasley Allen), Allen Smith (The Smith Law Firm) and Michelle Parfitt (Ashcraft & Gerel).

Cymbalta Restart? Plaintiffs who lost an appeal over certification of a class action involving the antidepressant Cymbalta plan to ask the U.S. Court of Appeals for the Ninth Circuit to reopen their case at Jan. 6 oral arguments. Eli Lilly & Co. had successfully sought dismissal under the U.S. Supreme Court's 2017 decision in Microsoft v. Baker, which struck down a procedural tactic in which a plaintiff voluntarily dismissed a case to appeal class certification orders. In 2018, U.S. District Judge Stephen Wilson refused to set aside the plaintiffs' original dismissal in the Cymbalta case, prompting Monday's appeal.

Crushing It: The U.S. Court of Appeals for the Ninth Circuit rejected two class actions: a nationwide employment case alleging gender bias against Microsoft, and a California case alleging Diet Dr Pepper's name is misleading. In the Microsoft case, the Ninth Circuit on Dec. 24 upheld an order refusing to certify a class of 8,600 female employees alleging the software company systematically paid and promoted men more often than women. In a Dec. 30 order, the Ninth Circuit found that the word "diet" in Diet Dr Pepper did not mislead consumers into believing they could lose weight. Lynne Hermle (Orrick) won for Microsoft, and Evan Young (Baker Botts) for Dr Pepper.

Biden Boosters: Prominent plaintiffs' attorneys make up some of the 250 top volunteer fundraisers for Joe Biden's presidential campaign, defined as those who give at least $25,000 to the Democratic candidate. Among the top contributors are Thomas Girardi (Girardi Keese), John Morgan (Morgan & Morgan), Russell Budd (Baron & Budd), Mikal Watts (Watts Guerra) and Arthur Luxenberg and Perry Weitz (Weitz & Luxenberg).

Thanks for reading Critical Mass, and a Happy New Year! I will be back next week.