Welcome to Critical Mass, Law.com’s briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. Here’s something Facebook won’t “like”: class actions filed over the Cambridge Analytica debacle. Lawyers are calling for a penalty flag to be thrown in the NFL concussion settlement’s claims process. And patent infringement suits are popping up before the MDL panel in the wake of the landmark SCOTUS decision in TC Heartland.
Days after news reports revealed that Facebook had misused data of 50 million of its users, lawyers jumped in with class actions and shareholder suits. Here’s Law.com’s story by Ross Todd.
In case you missed it: Cambridge Analytica, a voter data firm with ties to Donald Trump’s presidential campaign, received data in 2015 about Facebook users through an app. The New York Times has a summary on the debacle here. (Law.com, meanwhile, has a story here on how Deputy General Counsel Paul Grewal is becoming Facebook’s public face to the problem.) The FTC (see here) and state attorneys general are investigating, and a #DeleteFacebook campaign is making the social-media rounds.
But lawyers just upped the ante. On Tuesday, Morgan & Morgan’s John Yanchunis (along with attorney Clayeo Arnold and Abbott Law Group) filed the first consumer class action against Facebook and Cambridge Analytica. When asked how civil suits would change the game, Yanchunis told Ross: “I don’t mean to laugh. This isn’t my first privacy case.” That’s true — he’s lead counsel in the Yahoo data breach litigation. “I believe that lawyers who practice in this area have been much more effective in enforcing the rights of consumers than regulators.”
Also, on Tuesday, Pomerantz filed the first securities class action against Facebook Inc., CEO Mark Zuckerberg and CFO David Wehner, claiming they misled investors about Facebook’s social media policies.
Then, on Thursday, Cotchett Pitre & McCarthy brought a derivative shareholder suit against Zuckerberg, COO Sheryl Sandberg and six board members. In the firm’s press release (see here), Cotchett Pitre’s Mark Molumphy said: “Facebook’s apology doesn’t do much for the millions of Americans impacted by this conduct. It also doesn’t explain why Facebook executives waited three years to inform their loyal users and shareholders of the massive breach, especially on the heels of the FTC consent decree in 2011.”
NFL Concussion Lawyers Call for Penalty
The chorus of complaints over the $1 billion NFL concussion settlement is getting louder.
My colleague Max Mitchell has a story (see here) about mounting criticism that the claims process has been too slow and secretive. Attorney Larry Coben (whose firm, Anapol Weiss, is co-class counsel) filed a motion this week asking U.S. District Judge Anita Brody to hold a hearing on the matter. At least two other lawyers (New Jersey attorney Craig Mitnick and Gene Locks of Locks Law) raised similar concerns.
Max told me “it’s the dementia-related claims that are facing the most delays.” He said:
“Most are saying that the administrator is rejecting legitimate doctor assessments and asking for more information about things the players didn’t know they would need, or records that are no longer available. Attorneys say the NFL is appealing (internally in the administrative process) pretty much everything, and the claims administrator is, if not complicit, getting taken advantage of. The claims administrator, however, is saying that the process has only been in the works for a year, there have been a few fraudulent claims, things this big and complicated always take some time, and all the parties are working as fast as they can to move things along.”
As Predicted, MDL Panel’s Role Expands in Patent Cases
The U.S. Supreme Court’s TC Heartland v. Kraft Foods decision a year ago made it harder to bring patent infringement lawsuits in the Eastern District of Texas, prompting lawyers to predict the MDL panel might end up deciding more venue disputes in those cases.
Well, it’s happened.
According to my story (see here), at least three motions have been filed to transfer dozens of patent infringement cases involving non-practicing entities PersonalWeb Technologies, Iron Oak Technologies and Uniloc USA, whose request goes before the MDL panel next week. Defendants in that case, which include Apple and Motorola, have opposed the request, accusing Uniloc of forum-shopping in the wake of TC Heartland.
But they also offered an alternative venue should the cases get MDLed: The Northern District of California. That prompted Uniloc to respond with its own TC Heartland argument against that district, citing “a diaspora of patent case filings out of the Eastern District of Texas and into Delaware and California.”
Who Got the Work?
The opioid settlement table will need a few more chairs. On March 20, two more lawyers joined the negotiating team for the defense in the multidistrict litigation of government lawsuits brought against opioid companies. Tina Tabacchi, partner-in-charge of Jones Day’s Chicago office, appeared for Wal-Mart Stores East LP and Wal-Mart Stores Inc., defendants in some of the cases. And Kaspar Stoffelmayr of Bartlit Beck appeared for distributor Walgreens Boots Alliance Inc.
Here’s what else you need to know as we head into the weekend:
Drop That Suit!: A federal judge in Texas held two plaintiffs firms in contempt for bringing an employment class action against the fast-casual restaurant chain Chipotle based on Obama-era Fair Labor Standards Act rules that he blocked in 2016. Here’s Law.com’s story. U.S. District Judge Amos Mazzant ordered lawyers from Cohen Milstein and Outten & Golden to drop their suit. The order specifically included lead counsel Joseph Sellers of Cohen Milstein; lead counsel Justin Swartz of Outten & Golden; and local counsel Glen Savits of Green Savits. Chipotle’s lawyers (Sheppard Mullin, Messner Reeves and Cantey Hanger) had filed the contempt motion.
One Way: The In re Hyundai and Kia Fuel Economy Standards decision has attracted the attention of amicus groups on both sides of the aisle. According to my story (see here), the American Tort Reform Association, Public Justice, the Impact Fund and three other groups, plus a former federal judge and Harvard Law School professor, are aligned in urging the 9th Circuit to reverse en banc the Jan. 23 decision, which they say threatens the viability of nationwide class action settlements.
Taking Aim: A second lawsuit has been filed over Florida’s new gun law passed in the wake of the Parkland school shooting last month that killed 17. A story from the News Service of Florida (see here) says the latest suit is a class action that alleges the ban on “bump stocks,” which can make semi-automatic weapons work like fully automatic firearms, is an unconstitutional taking of private property. The NRA also has sued over the law’s provision raising the age to purchase rifles and other types of long guns from 18 to 21.
‘A Fair Fight’?: Opening statements began on Thursday in a high-profile Ford F-250 rollover trial in Georgia. Law.com’s coverage is here and here. It promises to be a knock-down fight between plaintiffs attorney Jim Butler of Butler Wooten & Peak and Ford lead counsel D. Alan Thomas of Huie Fernambucq & Stewart. Both sides have already accused each other of engaging in personal attacks. The judge even warned them: “This needs to be a fair fight.”
Butler, by the way, is enjoying a pretty good month: On March 16, the 11th Circuit revived his wrongful death case against a manufacturer of Mazda seat belts (see here). That decision came just one day after the Georgia Supreme Court upheld his $40 million verdict against Chrysler over a Jeep gas tank explosion (see here).