Welcome to Critical Mass, Law.com’s weekly briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. The U.S. Supreme Court finally picked acy pres case to review…the question is, why that one? A fee fight among plaintiffs’ counsel has escalated in the Flint water contamination case. And find out who’s defending dozens of hernia mesh device cases.
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Why SCOTUS Picked Google Case to Test Cy Pres Doctrine
The U.S. Supreme Court has finally picked a case to review the controversial use of cy pres funds: An $8.5 million class action settlement with Google.
Law.com’s Marcia Coyle has that story here.
It’s a big win for Ted Frank of the Center for Class Action Fairness at the Competitive Enterprise Institute, who petitioned the Supreme Court to review the deal because it directed $5.3 million in unclaimed funds under the cy pres doctrineto third parties, including the alma maters of some of the plaintiffs lawyers, but provided no money to the class. The Supreme Court had so far refused to take up other cases challenging cy pres (see here).
So why this case? I reached out to Tristan Duncan of Shook, Hardy & Bacon, whose own petition to review a cy pres fund was rejected by the Supreme Court on March 19. She told me:
“Unfortunately, in our case two justices [Samuel Alito and Neil Gorsuch] recused themselves which likely made it more difficult to amass a four-justice vote for cert whereas the Google case involved a single defendant and no recusals. The amici briefs also did a nice job describing the constitutional concerns with cy pres class settlements, including separation of powers and First Amendment problems with court-enforced redistribution of money to third party associations.”
One of those amici, The Center for Individual Rights, likened the Google case to Friedrichs v. CTA, which had to do with nonunion members paying union fees. On Monday, the group stated: “Just as public sector workers shouldn’t be compelled to support third party unions, class action plaintiffs should not be required to fund third party charities without their consent.”
Sparks Fly Among Plaintiffs’ Counsel in Flint
The plot thickens in the Flint water contamination cases. Here’s my story on the latest update to a nasty fight going on among the lead plaintiffs attorneys.
Here’s what’s happening: Co-lead class counsel Ted Leopold (Cohen Milstein) and Michael Pitt (Pitt McGehee) filed a motion to remove Hunter Shkolnik (Napoli Shkolnik) from his role as co-liaison counsel to the individual plaintiffs. Here’s my story on that. They accused Shkolnik of a “series of ethical issues and conflicts,” including illegally poaching clients from the class action. Shkolnik responded with his own claims that Leopold and Pitt filed the motion because he refused their demands for 80% of any common benefit fund. Read about that here.
On Monday: Pitt and Leopold called Shkolnik’s response a “red herring.” Veolia, one of the defendants in the Flint cases, filed a response saying both sides have made misleading statements to class members. And Corey Stern (Levy Konigsberg), who is co-liaison counsel with Shkolnik, called for a truce.
One side note: Shkolnik cited U.S. District Judge Lucy Koh’s order this year appointing a special master in the Anthem data breach settlement (Leopold’s firm, Cohen Milstein, is one of four lead firms in Anthem). On Monday, Leopold and Pitt acknowledged that order but didn’t address the special master’s findings last week that the $38 million fee request was excessive (my colleague Scott Flaherty had that story here).
Who Got the Work?
Reed Smith and Shook, Hardy & Bacon have appeared as lead defense counselin 55 lawsuits filed over polypropylene hernia mesh devices. Michael K. Brown of Reed Smith in Los Angeles appeared before the U.S. Judicial Panel on Multidistrict Litigation on April 25 for C.R. Bard Inc., and Jennise Stubbs of Shook, Hardy appeared on April 24 for Sanofi Genzyme. Plaintiffs attorneys have moved to coordinate the cases into multidistrict litigation in either Ohio or Missouri. The defendants are due to respond on Thursday.
Here’s what else you need to know this week:
On Top: Law.com affiliates VerdictSearch and The National Law Journal came out this week with their annual Top 100 Verdicts report (story here, chart here). On the 2017 list were a $417 million talcum powder verdict (No. 4), which has since been vacated, and a $247 million award over Pinnacle hip implants (No. 8). The list also included a $454 million fraud verdict at No. 3 in a class action over allegedly defective surgical gowns (here’s Law.com’s coverage). The plaintiffs lawyer in that case, Michael Avenatti, is best known for an entirely different role: He’s the attorney for Stormy Daniels, the porn star alleging an affair with Donald Trump, and who just filed a defamation lawsuit against the president over a statement he made–you guessed it–in a tweet.
Silver Lining: The 5th Circuit reversed a $502 million Pinnacle hip implant verdictagainst DePuy Orthopaedics last week. Law.com covered the decision here and here. The panel said it was particularly troubled by plaintiffs attorney Mark Lanier’s references at trial to Saddam Hussein and payments he made to a witness. Yet it was Lanier’s colleague on the plaintiffs team, former U.S. Solicitor General Ken Starr, who cited the April 25 decision in a separate appeal over a $1.04 billion verdictthat goes before the 5th Circuit on June 7. Starr noted that the panel rejected the defense’s arguments against a design defect claim.
Defense Win in Xarelto Trial: A Philadelphia jury came out with a defense verdictlast week in the second Pennsylvania state court trial over the blood thinner Xarelto. Here’s Law.com’s story. The trial team for defendants Janssen Pharmaceuticalsand Bayer included Brian Stekloff (Wilkinson Walsh), Sheila Boston (Arnold & Porter) and Tarek Ismail (Goldman Ismail). Brian Barr (Levin Papantonio) and Laura Feldman (Feldman & Pinto) represented the plaintiff, Daniel Russell. The next Philadelphia trial over Xarelto is scheduled for June 11.
Charged Up: To those plaintiffs lawyers who have sued Apple over iPhone battery defects: Get those lead counsel motions ready! U.S. District Judge Edward Davilahas set a deadline for Thursday to file motions for lead counsel in the multidistrict litigation in San Jose, California. So far, 64 lawsuits have been filed, and more than 35 plaintiffs lawyers showed up at the first hearing in the case last week. Davila said motions should be limited to 15 pages, with a hearing set for May 10.
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