Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Bayer could be bordering on a $10 billion Roundup settlement. As some states ponder jury trials via Zoom, lawyers aren't so sure. Find out who is representing TikTok in nearly a dozen privacy class actions.

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Roundup Resolution in the Works…Maybe.

Bayer AG has reached an "oral agreement" to settle up to 85,000 lawsuits filed over Monsanto's Roundup, according to this report from Fortune and Bloomberg. The possible deal would resolve a majority of the estimated 125,000 lawsuits brought by individuals claiming they got non-Hodgkin lymphoma from using the herbicide.

Bayer has been in negotiations since January, but some plaintiffs' attorneys balked at the offers. Bayer took an even tougher stance last month after the COVID-19 pandemic hit.

Bayer spokesman Chris Loder told me:

"We've made progress in the Roundup mediation discussions under the auspices of Ken Feinberg, but in keeping with the confidentiality of this process, the company will not speculate about settlement outcomes or timing."

I asked Feinberg, the mediator appointed in the Roundup multidistrict litigation, about the tentative deal. He said:

"There is no agreement at this time. I am cautiously optimistic that a national settlement will be achieved, but the mediation process has been slowed by the pandemic public health crisis."

Meanwhile: Bayer faces June 2 oral arguments in the appeal of the first Roundup verdict: a $289 million award in 2018. A California appeals court asked both sides for supplemental briefs on whether federal law preempted claims that Monsanto failed to warn about its herbicide's health risks. Then, on May 13, the appeals court told both sides to address this question at oral arguments:

"Assume that this court agrees with Monsanto Company that the award of future noneconomic damages should be reduced. If the court directs such a reduction, should it also reduce the award of punitive damages to maintain the trial court's 1:1 ratio of compensatory damages to punitive damages?"

Judges and lawyers in Texas picked a jury remotely over Zoom video conference, for a "summary jury trial" proceeding.
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Could There Be Jury Trials During COVID-19?

As some courts reopen, questions linger over whether jury trials can take place amid the COVID-19 pandemic. Pennsylvania's court leaders didn't expect jury trials until after September, and Texas is working out the kinks from the first Zoom summary jury trial.

I spoke with plaintiffs' attorney Mark Robinson (Robinson Calcagnie), the 2014 president of the American Board of Trial Advocates, which focuses on the preservation of the civil jury trial. COVID-19 delayed a Sept. 29 opioid trial in which Robinson represents the counties of Los Angeles, Orange and Santa Clara, and the city of Oakland, California.

Robinson told me jury trials were unlikely to go forward for at least six months. Here's his take:

"If someone's dying, I can understand the plaintiffs' lawyer trying to get to trial as soon as possible. On the other side, I can see the defense side, and the court's side, and people in the court system. They don't want to die of COVID. And they don't want to spread COVID in a courtroom. I think that probably most courts, it appears to me, are going to wait five or six months to have a trial. And I think that probably makes sense."

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Who Got the Work?

Anthony (Tony) Weibell (Wilson Sonsini) is representing TikTok in 10 class actions alleging the video app violated the Illinois Biometric Identification Privacy Act. Weibell, whose other clients have included Google and Netflix, appeared on May 21 before the U.S. Judicial Panel on Multidistrict Litigation, where plaintiffs' attorney Francis "Casey" Flynn has sought to coordinate the cases in the Southern District of Illinois.

Here's what else is happening:

Talc Tip: Johnson & Johnson attributed last week's decision to discontinue sales of talc-based baby powder to COVID-19, but plaintiffs' lawyers pointed to a court ruling last month that allowed them to introduce five scientific experts into trials. The April 27 decision by U.S. District Judge Freda Wolfson, who is overseeing more than 16,000 lawsuits alleging Johnson & Johnson's baby powder causes ovarian cancer, was the "tipping point" for the company, they said.

Floodgates Open: At least two class actions filed on May 22 allege that negligence in maintaining a dam caused massive flooding earlier this month in Michigan. One lawsuit, brought in U.S. District Court for the Eastern District of Michigan by Frank Petosa (Morgan & Morgan), Elizabeth Graham (Grant & Eisenhofer), and Rob Jenner (Jenner Law), names the owners, operators and funders of the dam, while the other, filed in Michigan Court of Claims by Michael Pitt (Pitt McGehee), names the Michigan Department of Environment, Great Lakes & Energy.

Santander Settlement: Automotive financing company Santander Consumer USA agreed to pay $550 million to settle allegations from 34 states of deceptive loan practices. The settlement provides California with the most of the money—about $99 million. Attorneys general in California and other states, including Connecticut and New York, accused Santander of approving high-cost loans to consumers who couldn't afford them.

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