Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. A federal judge overseeing a biometrics class action against Facebook has a lot of questions about its proposed $550 million settlement. California and Oklahoma could be home to the next bellwether trials over the opioid crisis. Who's repping Wells Fargo in lawsuits over a software glitch that denied mortgage loan modifications to nearly 1,000 customers?

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

Judge James Donato of the U.S. District Court for the Northern District of California.

Judge Tags Topics in Facebook's $550M Deal

The judge overseeing Facebook's $550 million class action settlement over its "tag suggestions" feature had some questions—a lot of them. At a Feb. 6 hearing, U.S. District Judge James Donato in San Francisco asked lawyers why class members in the all-cash settlement would get less than the $1,000 to $5,000 allowed under the Illinois Biometric Information Privacy Act, the landmark statute at issue in the case. He also wanted to know more about the injunctive relief that would ensure Facebook wouldn't make the same privacy violations again.

The motion for preliminary approval of the settlement is due March 12.

Co-lead plaintiffs' counsel Michael Canty (Labaton) talked to me about the settlement, which could be a harbinger for other class actions brought under the Illinois law (case in point: Google just got sued on the same day under the same statute).

Here's what he told me:

The Northern District of California's guidelines for class action settlements: "We're mindful of the fact that the court, as he said, the guidelines is a bit of a misnomer. He described them as not being well named. They're not guidelines, they're mandatory, and we're certainly cognizant of our obligation to comply with the Northern District of California's guidelines."

The amount that class members would receive: "On the size of the class, we want to make sure we have the correct number before we speak definitively. After that, there would be a non-reversionary settlement. The money would continue to be distributed to class members."

Injunctive relief: "The court made a comment about that—that he was going to be looking with a very keen eye for conduct remedy. Certainly, that's something we're aware of and working on to make sure the conduct does get changed moving forward."

Dan Polster, U.S. District Judge of the District Court for the Northern District of Ohio.

Opioid Judge Takes "Significant Step" Toward Trial

In a move heralded by plaintiffs' attorneys in the opioid lawsuits, the U.S. Judicial Panel on Multidistrict Litigation remanded two cases for upcoming bellwether trials.

Here's the background: In November, U.S. District Judge Dan Polster, who has his plate full with 2,500 lawsuits in the opioid MDL, suggested remanding three lawsuits brought separately by the city of Chicago, the Cherokee Nation in Oklahoma and the city and county of San Francisco. Polster, as you recall, made numerous discovery and pretrial orders ahead of the first bellwether trial, which two Ohio counties settled on Oct. 21.

"What the court has learned is that, if it proceeds with the bellwether trial process as it has so far, it will simply take too long to reach each category of plaintiff and defendant, much less each individual plaintiff and defendant," Polster wrote in the Nov. 19 filing with the MDL panel. "Meanwhile, the opioid crisis shows no sign of ending."

What's next: Opiate distributors and pharmacies filed a motion to vacate Polster's remand suggestion as to the Cherokee Nation and San Francisco, calling it an "irrational and arbitrary" order that would "delay progress toward global resolution." But, on Feb. 5, the MDL panel rejected those challenges, granting remand of both cases.

The plaintiffs' executive committee in the MDL called the remand order a "significant step forward."

"First, San Francisco and Cherokee Nation become the latest communities to move closer to their day in court to hold the opioid industry accountable and secure the relief funds they need for the decades-long recovery process ahead. Second, the full picture of how this litigation will unfold is coming into view."

Who Got the Work?

Amanda Groves (Winston & Strawn) is representing Wells Fargo Bank in nine lawsuits brought over a software glitch that caused the bank to deny mortgage loan modifications to nearly 1,000 of its customers. Groves appeared on Jan. 29 before the U.S. Judicial Panel on Multidistrict Litigation. Groves and other lawyers at Winston & Strawn have been involved in the cases, which are both individual lawsuits and class actions. Plaintiffs' attorneys have moved to coordinate the lawsuits in Washington or California, where judges have refused to dismiss the cases. In a Feb. 5 opposition, Groves said an MDL was "unnecessary and premature." Should the panel decide to grant an MDL, she wrote, it should be in Iowa.

Here's what else is happening:

Nuclear Verdict: A New Jersey jury awarded $750 million in punitive damages in the latest talcum powder verdict against Johnson & Johnson—which the judge quickly said she would reduce to $186.5 million under the state's Punitive Damages Act. The jury took less than three hours to deliberate in the trial's second phase, which was limited to punitive damages after another jury awarded $37.3 million in compensatory damages last year. As in the first phase, there were objections and mistrial motions in a fight to the finish, but the judge didn't strike anybody's closing argument (she did, however, make two curative jury instructions to ignore remarks the lawyers made against one another). Johnson & Johnson plans to appeal.

Locked Out: The U.S. Judicial Panel on Multidistrict Litigation on Feb. 5 refused to transfer sex trafficking lawsuits against various hotels into an MDL. Plaintiffs brought dozens of cases under the Trafficking Victims Protection Reauthorization Act, but the panel sided with 38 defendant hotels, including Hilton and Marriott, in finding no commonality. "We recognize the seriousness of these allegations and are sympathetic to counsel's concern for the fair treatment of victims," the panel wrote, but the cases involved "different alleged sex trafficking ventures, different hotel brands, different owners and employees, different geographic locales, different witnesses, different indicia of sex trafficking, and different time periods."

Door Jam: On-demand delivery service DoorDash could face arbitration claims by 5,000 individual couriers claiming to be misclassified as independent contractors. U.S. District Judge William Alsup, in San Francisco, granted the plaintiffs' motion to compel arbitration on Monday, while rejecting DoorDash's attempt to stay the cases. DoorDash attorney Joshua Lipshutz (Gibson Dunn) raised concerns at the hearing that many of the arbitration claims weren't legitimate, prompting Alsup to threaten plaintiffs' attorney Warren Postman (Keller Lenkner) that he would pay fees if that turned out to be true. "We are confident in the process and that there were no shenanigans," Postman told the judge.

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