Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Are personal injury lawyers looking at the coronavirus? Opioid settlements have netted $160 million in contingency fees. In an order slashing fees, the federal judge in the State Street case gave advice about class actions to his colleagues on the bench.

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

Travelers all wear masks to prevent infection from coronavirus. Photo: B.Zhou/Shutterstock.com

Could Coronavirus Victims Sue for Injuries?

The number of confirmed cases of coronavirus hit 130 in the United States on Wednesday, according to the Centers for Disease Control and Prevention, including one involving a New York lawyer. Nine people have died.

While the coronavirus was unpredictable, could victims have a personal injury lawsuit against the cruise ships, nursing homes or hospitals where they were infected or treated? It's a fair question, given legal actions against the leader of a religious cult accused of precipitating an outbreak of more than 5,000 cases in South Korea.

I reached out to John "Jack" Hickey (Hickey Law Firm), who has spent his 40-year career defending cruise ships, then suing them. He told me lawyers would look at whether the defendant took "all reasonable measures." For instance, in the quarantine of passengers on the Diamond Princess, where 45 of the U.S. cases of coronavirus originated, and over which recent questions have surfaced, he said:

"Every government has the inherent power to quarantine a ship, a train, a bus or plane, or any group of people that are coming into the country from outside that may have a disease. What we don't know is whether the cruise line did everything it could to work with the Japanese government to get this quarantine and get the healthy people off that cruise ship. In the cruise ship, they're in an enclosed environment where they're exposed to people who potentially had the coronavirus. That's what the big question mark there is. If there's a cause of action, I think it would be there."

Attorney Fee Tab in Opioid Settlements: $160 Million

About a dozen law firms are set to receive $160 million in contingency fees from 15 settlements over the opioid crisis. That's according to my research, which looked at opioid settlements during the past year. The settlements involved various defendants that reached agreements with two Ohio counties and the state of Oklahoma.

That figure is likely to increase in light of last week's global deal with Mallinckrodt. But several settlements involved millions of dollars in non-cash elements, for which attorneys agreed they would not take fees. And they could be subject to common benefit fees, which compensate the lead lawyers in the multidistrict litigation. Those lawyers have proposed a 7% hold back on opioid settlements—a move that's sparked protests from numerous states, cities and counties, and even the defendants, who are in talks over a potential $22 billion global settlement.

All of which means that it could be awhile before any lawyers get paid for their work on the opioid cases. Richard Ausness (University of Kentucky J. David Rosenberg College of Law), who I talked to for both stories, told me:

"This stuff might drag on, even if there's a settlement, for years from now. In the tobacco cases, some of these law firms had to borrow money to finance it. They didn't have millions of dollars to spend on their own. They had to borrow it and pay interest. The longer the time is between the time they're borrowing and the time they can repay, that's an expense, too."

Judge Tells Bench: Pay Attention to Class Actions

After a lengthy investigation, a federal judge in Boston came out with his findings regarding a fee award in $300 million of securities class action settlements—and it wasn't good for plaintiffs' lawyers. Here's my colleague Jack Newsham's coverage of the Feb. 27 report by Judge Mark Wolf, of the District of Massachusetts, who concluded that "serious, repeated misconduct" by the plaintiffs' lawyers forced him to slash a $74.5 million fee award to $60 million.

A quick backgrounder: In 2017, Wolf brought in a special master, who uncovered evidence of over overbilling, particularly by Thornton Law Firm, and that Labaton Sucharow, as lead counsel, had failed to disclose an agreement to pay $4.1 million to a Texas lawyer with political ties to the Arkansas pension fund serving as plaintiff. Both firms objected to the special master's findings.

Wolf's order in a nutshell: Wolf found Labaton and the Thornton Law Firm submitted court filings "replete with material false and misleading statements." He referred them to the Massachusetts Board of Bar Overseers. He also found that Lieff Cabraser Heimann & Bernstein was "deficient" in failing to suspect the misconduct.

In his order, Wolf had some tips for judges overseeing class actions. Here are a few of them:

>> "This case has educated this court to understand that in view of its foreseeable fiduciary duties, it is important that judges scrutinize motions to appoint class representatives and lead counsel, as well as motions for awards of attorneys' fees, even⁠—indeed especially⁠—when such motions are not opposed. Candid, capable counsel will easily survive such scrutiny. Unethical attorneys should not."

>> "If judges are appropriately skeptical and do the work necessary to discharge their duties as fiduciaries for a class, its members will be protected and the integrity of the administration of justice will be promoted. This effort may sometimes be arduous. It will always be important."

Here's what else is happening:

Apple Bites: Apple agreed to settle claims that it surreptitiously throttled older iPhones with software upgrades in a deal valued at between $310 million and $500 million, depending on the claims rate. The deal could offer $25 payments to each class member and includes $93 million in attorney fees. Co-lead counsel Joseph Cotchett (Cotchett, Pitre & McCarthy) said the deal was among the largest class action settlements involving consumer products (other than an automotive defect). He and another firm principal, Mark Molumphy, were sanctioned last year for disclosing confidential information in the case.

Another View: In a $13 million settlement of a class action alleging Google's Street View vehicles snooped on WiFi networks, U.S. District Judge Charles Breyer in San Francisco called the matter "a paradigmatic case of injury and non-ascertainable damages" at a Feb. 28 fairness hearing. A group of state attorneys general and Ted Frank (Hamilton Lincoln Law Institute) are objecting to the settlement, which provides cy pres donations instead of direct payouts to class members.

Data Dumps: Lawyers have filed data breach class actions against social game developer Zynga, maker of Words With Friends, which announced a cyberattack last year involving 218 million users, and MGM Resorts, which was hit by a breach involving 10.6 million of its hotel guests. Morgan & Morgan filed the MGM case last month, while the Zynga suit was filed on Tuesday by Cotchett, Pitre & McCarthy; Foulston Siefkin; and The Miller Law Firm.

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