Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. The Federal Circuit hears a class action that asks: What do PACER fees pay for? The latest legal news—and there's been lots of it—about talcum powder. Lawyers are swirling around what could be the next big toxic tort: "forever chemicals."

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

Deepak Gupta. (Courtesy photo)

Curtains, Gold-Plated Toilets, in PACER Fee Case

A federal appeals court heard arguments this week in a class action over the use of PACER fees—and the judges were chock full of hypothetical scenarios. Here's my colleague Jacqueline Thomsen's story about the case before the U.S. Court of Appeals for the Federal Circuit, in which Deepak Gupta (Gupta Wessler) represents several nonprofits challenging PACER fees.

Senior Judge Raymond Clevenger questioned whether the fees could end up going to "buy new curtains for the U.S. Supreme Court" or "install a gold-plated toilet." He also had some tough words for DOJ attorney Alisa Klein, asking her, "Do you have a lot of trouble answering questions normally in life or just appearing before this court?"

Ouch.

I asked Jacqueline which way the panel appeared to lean. She told me:

"I got the sense from the arguments that the panel was going to go along with Gupta's suggestion that they make a ruling on the PACER statute and then remand it to the district court. How exactly they'll rule on that statute, and for what purposes PACER fees can be used, was a little less clear, especially because the Federal Circuit sticks pretty close to its time limits. But they seemed to fully reject DOJ's claims that courts should not have any jurisdiction over this issue at all, questioning how exactly a court could be held accountable if it misuses PACER fees."

Baby Powder Bulletin

Johnson & Johnson's baby powder made headlines this past week.

Here's a recap:

>>A New York Supreme Court judge sanctioned plaintiffs' firm Simmons Hanly Conroy for disclosing the Oct. 3 deposition of Johnson & Johnson CEO Alex Gorsky to Reuters in violation of a protective order. The judge, who called the actions of shareholder Jim Kramer "frivolous," set a Feb. 24 hearing to determine how much Johnson & Johnson, represented by Thomas Kurland (Patterson Belknap), should get in costs and fees.

>>A trial in New Jersey, in which Gorsky testified for the first time in a talcum powder case, wraps up this week, with closing arguments scheduled for Wednesday. Attorney Chris Panatier (Simon Greenstone) is asking jurors to decide punitive damages after a previous jury awarded $37 million to four plaintiffs who allege Johnson & Johnson's baby powder caused mesothelioma. Johnson & Johnson has a new legal team, Morty Dubin (King & Spalding) and Ally Brown (Skadden), after the judge struck the closing arguments of its attorney in the trial's first phase.

>>On Tuesday, the FDA held a public meeting on asbestos in cosmetic talc. The hearing focused on testing methodologies and terminology used to measure asbestos, which the FDA discovered last year in Johnson & Johnson's baby powder, prompting the company's voluntary recall of 33,000 bottles. The deadline to submit comments is March 4.

>>Six months after Mark Lanier (Lanier Law Firm) voluntarily dismissed his Prop 65 case over Johnson & Johnson's baby powder, a trio of other firms—Simmons Hanly Conroy, Abtahi Law Group and McGowan, Hood & Felder—filed a new lawsuit hoping to get California's ubiquitous cancer warnings on talcum powder products. The new suit includes other defendants, such as Gold Bond maker Sanofi SA and retailers like Target and Walmart that sell generic brands.

Day Foot Rd. crosses over Little Hoosic River in Petersburg, New York.

"Forever Chemicals" Awash in Lawsuits

A steady stream of lawsuits over "forever chemicals" seeping into the drinking water of communities across the country has lawyers speculating about the next big toxic tort. The suits allege 3M, DuPont and other companies knew about the dangers of perfluorooctanoic acid, or PFOA, and related chemicals. Several state attorneys general have sued, along with water utilities and residents, whose class actions have come out with some key rulings. Scott Summy (Baron & Budd) told me "forever chemicals" are "probably the largest environmental hazard in the country right now." By the way: Summy is co-hosting a plaintiffs' conference this March in Nashville on water contamination.

Here's what else is happening:

Pharma Feud: The Ohio counties scheduled for trial this November over the opioid crisis responded to a petition the defendants filed before the U.S. Court of Appeals for the Sixth Circuit challenging three pretrial orders. The defendants, which include pharmacies like CVS and Walmart, backed by the U.S. Chamber of Commerce and other amicus groups, insist that the judge's rulings, including a discovery order, contravened the Federal Rules of Civil Procedure. On Jan. 29, Cuyahoga and Summit counties called the petition part of a "pattern and practice of delay" by the defendants.

Mass Move: Four mass tort partners from Orrick have joined King & Spalding in New York. Morty Dubin, John Ewald, Kristen Fournier and Kathy O'Connor share clients with King & Spalding, including Johnson & Johnson and Dow. Dubin was lead counsel for Johnson & Johnson in a talcum powder trial with Alex Calfo (King & Spalding) and Sharla Frost (Tucker Ellis) that ended in a defense verdict.

Cult Case: A group of 80 victims of the sex slave cult NXIVM have filed a lawsuit against the leaders of the purported self-help organization, whose founder, Keith Raniere, was convicted of charges including racketeering, sex trafficking and child pornography. Kohn Swift & Graf filed the case in federal court in New York against 19 defendants, including Raniere and Seagram heiresses Clare and Sara Bronfman.

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