U.S. Capitol building.

Opioids and data breaches are expected to be the hot mass torts in 2018, with tort reform expected to resurface on Capitol Hill.

Lawyers and advocates on both sides of the aisle agree that the biggest products liability matter in the New Year is opioids—prescription painkillers that have led to a public health problem. Prominent members of the plaintiffs bar have brought hundreds of lawsuits on behalf of state and local governments against opioid makers and distributors. Expect lawyers to start coordinating their efforts in 2018.

“2018 will be the year of opioid litigation,” said Jay Edelson of Edelson PC, which is working with several governments to bring opioid suits. He said most of the major cities and states haven't sued yet. “There's going to be a ton more filed.”

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Another big area will be data breaches, with regulators in the United States and Europe playing a bigger role. Tort reform measures on Capitol Hill and changes to the federal rules also are expected to move forward, with the biggest focus on class actions, multidistrict litigation and third-party litigation financing.

Here's a quick look at what's in store for 2018:

Opioids

More than 200 states, cities and counties have filed lawsuits against the manufacturers and distributors of opioids, such as Percocet and OxyContin, which have led to a rise in overdoses and addictions throughout the United States.

Most states are still investigating, but cities and counties have taken the lead in filing lawsuits—and nearly every one of them has retained outside counsel on a contingency fee basis. Several hundred more cases are expected to be filed in 2018, said Peter Weinberger, managing partner of Cleveland's Spangenberg Shibley & Liber, who was named co-liaison counsel of a plaintiffs leadership team in the MDL that lawyers proposed on Dec. 20.

“This is a broad horrible societal problem, and the opioid epidemic is as serious a health crisis as faced ever as a nation,” Weinberger said.

Attorneys involved in that effort come from some of the biggest law firm names in mass torts: Motley Rice, Seeger Weiss, Lanier Law Firm, Weitz & Luxenberg and Baron & Budd. Many of the lawyers on the proposed team were key players in the $246 billion settlement with Big Tobacco in 1998.

But opioids won't be like Big Tobacco, key observers said. Many of the defendants have been quick to point out that opioids, unlike cigarettes, are approved by the U.S. Food and Drug Administration.

And unlike Big Tobacco, which focused primarily on four defendants, opioid cases name dozens of companies and individuals with varying alleged roles in the crisis, including some doctors and clinics. The plaintiffs also vary, with labor unions and Native American tribes also filing lawsuits.

“There are a lot more plaintiffs and undoubtedly going to be more before this is all over,” said Richard Ausness, a professor at the University of Kentucky College of Law. “That could be a problem as far as a global settlement is concerned.”

And coordination among the plaintiffs bar has been difficult—though that could get ironed out in 2018. From the start, lawyers have been divided over whether to pursue their cases in state courts or in the MDL. Most of the states, like Washington and New Jersey, have filed in state courts, as have the city of Seattle and several New York counties. Edelson said he anticipated a coordinated effort among lawyers with state court cases as soon as the second quarter of 2018.

Not every state case will be involved, he said, “but it's pretty clear we'll have a big enough group we'll have a footprint.”

In the MDL, the prospective leadership team is expected to come up with a proposed plan to manage the docket by Jan. 9, 2018. That could include how to coordinate with lawyers pursuing cases in state courts.

Could settlements be in the works in 2018?

“I'm sure there are those that would like to see the judicial system act rapidly in responding to this crisis, and I think that's on everybody's mind,” Weinberger said. “But there are a lot of moving parts, a lot of defendants involved, and they have their own interests that aren't necessarily aligned.”

Data Breaches

Data breaches are expected to continue in 2018, and they're only going to get bigger, experts said.

“The safest bet is that there will be another Equifax in our future, if not larger, in terms of the scope and scale of a breach,” said Glen Kopp, a New York partner at Bracewell and former federal prosecutor.

And the main focus for lawyers suing over data breaches will be on the conduct of the defendant—in particular, how long did it wait to tell regulators, customers or employees about the breach? That conduct was at the forefront of the Equifax breach, in which company officials waited several months before disclosing that 143 million people may have had their personal information stolen, and Uber Technologies Inc., which concealed for more than a year knowledge of a breach that it announced last month.

Kopp said 48 states now have notification laws when it comes to data breaches. And regulators will be playing a bigger role in 2018. So far this year, the cities of Chicago and Los Angeles and the state of Washington have sued Uber, and the city of San Francisco sued Equifax.

“Part of the investigations that the state AGs are going to engage in is whether or not they should have been noticed earlier,” Kopp said.

Many of the cases cite new regulations that set a standard notification period of 72 hours. In August, a new law came into effect in New York that requires financial services companies to report breaches within 72 hours. Going forward, the European Union's General Data Protection Regulation will begin enforcing new regulations in May that require companies to notify of a breach within 72 hours.

Morrison & Foerster's Lokke Moerel, who works in the Berlin office, called the European regulations a “major change” for companies that have employees or customers in Europe.

“It will open up new possibilities for class actions, or collective issues,” she said.

In the United States, class actions over data breaches have struggled to get off the ground, having failed to establish that victims were harmed by the breach. Many cases have settled for a few million dollars.

Equifax, which is a credit reporting agency, might be a different story, Kopp said. He said some plaintiffs have alleged that bank accounts and student loans were opened in their names. And courts are becoming more receptive to the idea that identity theft is a recognizable harm.

“From a reputational standpoint, it's also possible that Equifax may make a strategic decision that the best way to handle this and put this behind them is to settle quickly,” he said.

Tort Reform

In early 2017, the U.S. House of Representatives passed several tort reform bills, the most prominent of which focused on making it harder to file class actions. That bill, the Fairness in Class Action Litigation Act, also would require more vetting for lawsuits brought in multidistrict litigation and disclosure of third-party litigation financing of cases. The U.S. Senate Judiciary Committee held a November hearing on tort reform, at which the class action bill was discussed, but the bills haven't progressed.

Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, said she hoped to advance the class action bill in 2018.

“There's ongoing concern on Capitol Hill that class action lawsuits are not achieving their primary purpose—compensating truly injured consumers,” she wrote in an email.

The Judicial Conference Advisory Committee on Rules of Civil Procedure also agreed in November to set up a subcommittee that would look at potential changes to multidistrict litigation and, to some extent, third-party litigation funding. The Chamber and Lawyers for Civil Justice pushed for financing disclosures.

Those proposals could come up at the committee's meetings in 2018.

Rickard called it an “incremental but important step.”

“This signals awareness and concern within the federal judiciary that third-party litigation financing is influencing cases and is growing,” she wrote.

The war over arbitration also is expected to continue—but perhaps taking a different course. In 2017, the plaintiffs bar lost a big fight when Congress voted to repeal a Consumer Financial Protection Bureau rule that had banned the use of forced arbitration clauses to protect financial firms from class actions. The Supreme Court also is weighing a trio of cases involving arbitration agreements that prohibit employees from participating in class actions.

But on Capitol Hill, a bipartisan group of lawmakers in the House and Senate jumped on the growing disclosures of sexual harassment claims by introducing legislation in December that would make it easier for victims in Congress to make such complaints. One provision would bar pre-dispute arbitration of those claims.

“Americans are calling for action to stamp out sexual harassment in the workplace,” American Association for Justice CEO Linda Lipsen wrote in an email. “But corporations continue to cover up sexual harassment by forcing their workers to sign arbitration agreements, eliminating their rights to go to court.”