Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Days after the Transportation Department mandated that airlines fully refund passengers in light of the COVID-19 outbreak, United Airlines got hit with at least two class actions. Edelson is challenging a snail-mail provision of an arbitration agreement amid lockdown orders. A Florida judge, stymied by coronavirus constraints, named a temporary "April Deliverables Team" in the Zantac MDL.

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

 

Class Actions Against United Airlines Take Flight

Three days after the U.S. Department of Transportation's mandate that airlines fully refund passengers in light of COVID-19, two class actions allege United Airlines still isn't complying.

The DOT's order, on April 3, comes after consumers complained that air carriers were giving vouchers or credits for future travel. The suits against United, both filed on Monday in the U.S. District Court for the Northern District of Illinois, allege that the airline changed its cancellation policies several times but still doesn't provide cash refunds for flights it cancels.

Daniel Herrera (Cafferty Clobes) and Joseph Sauder (Sauder Schelkopf) filed one case, while Steve Berman (Hagens Berman) filed the other. Berman, by the way, has filed class actions in the past few weeks against Toyota, Apple and Amazon—none having to do with the COVID-19 outbreak.

With much of the country at a stand still, I asked Berman why it's important right now to move forward with class actions unrelated to the coronavirus. He told me:

"Two reasons. One, we wanted to stop the statute of limitations from running. And you will see on page 1 of the Amazon case for example we indicated we would work with Amazon on their response time, so that we don't distract the company from its mission at this moment in time. Same for the other defendants. Second, I think the majority of courts I have heard from so far expect lawyers to continue working to the extent we can, and filing a new case doesn't put anyone in danger so we will continue doing so."

 

 

Class Members Say Snail-Mail Too Risky

Buying stamps might have been a simple task prior to the coronavirus epidemic, but it's now a burden on potential class members—at least, according to Rafey Balabanian (Edelson), who is challenging Huuuge's arbitration provision requiring customers who want to opt out of its arbitration agreement to send notices by U.S. mail.

A quick review: Edelson brought several class actions against companies accused of violating Washington state's online gambling law. In the case against Huuuge, the company's arbitration agreement requires customers to waive their right to sue in order to play its games. And, if they want to opt out, they have to drop their notices in the mail.

That opt-out procedure is now a burdensome requirement, particularly for a potential class in Washington, the first coronavirus epicenter.

"There's of course a 'shelter in place' order, so they're literally trying, in our view, to put people at risk healthwise in order to opt out of their terms of service, which allows them to get out of facing lawsuits for what we allege is [an] illegal gambling enterprise."

Huuuge, repped by Jaime Allen (Davis Wright), said in court documents that class members could "easily buy stamps at a grocery store, a drug store, a post office, or online, and mail an opt out notice at a post office or mailbox. These businesses are open."

Who Got the Work?

Plaintiffs' lawyers suing over Zantac got a big boost last week when the FDA called for a mandatory recall of the heartburn medication. Days later, U.S. District Judge Robin Rosenberg issued an order assigning 11 lawyers to spearhead the Zantac multidistrict litigation—but only temporarily, given the judge couldn't hold an initial conference due to COVID-19. The lawyers on the so-called "April Deliverables Team" are: Mark Dearman (Robbins Geller), Marlene Goldenberg (GoldenbergLaw), Fred Longer (Levin Sedran & Berman), Jennifer Moore (Moore Law Group) and Conlee Whiteley (Kanner & Whiteley). Other lawyers appointed to certain tasks were: Robert Gilbert (Kopelowitz Ostrow), Mike McGlamry (Pope McGlamry), Mikal Watts (Watts Guerra), Tracy Finken Magnotta (Anapol Weiss), Dan Nigh (Levin Papantonio) and Adam Pulaski (Pulaski Kherkher).

Here's what else is happening:

Double Booked: Marriott faces a class action after announcing another data breach last week. John Morgan and John Yanchunis (Morgan & Morgan) filed the lawsuit one day after Marriott announced the breach affecting 5.2 million customers. Marriott already faces multidistrict litigation over a 2018 breach that compromised the personal data of 500 million hotel guests.

Test Truce: The Los Angeles city attorney reached a settlement with a California company that sold at-home COVID-19 tests not approved by the FDA. Yikon Genomics, which registered the domain "thecoronavirustestkit.com," agreed to cease selling the $39 test kits and to provide full refunds to customers. The company's lawyer, Allison DeLaurentis (Pepper Hamilton) said: "We intend to pursue FDA approval for the market and sale of COVID-19 test kits, which we hope will aid in mitigating this global health crisis."

Zoom's Lawyer: Video conferencing site Zoom has turned to Michael Rhodes (Cooley) to defend against at least two class actions alleging it failed to protect the privacy of its customers. The suits, filed last month, are among the first to sue under the California Consumer Privacy Act, which became effective on Jan. 1.

Thanks for reading Critical Mass. Stay safe, and I'll be back next week!