Welcome to Critical Mass, Law.com's weekly briefing on class actions and mass torts. Find out which New Jersey law firm got sued by two victims of the Pulse nightclub shooting after its office manager pressured them for sex. The 9th Circuit dialed up the debate over the TCPA. And how much will Yahoo's data breachdeal cost?

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Shooting Victims Sue Over Solicitations

Two victims of the 2016 mass shooting at the Pulse nightclub have sued the Law Offices of Conrad J. Benedetto, a personal injury firm in New Jersey, alleging its office manager pressured them for sex. Here's Law.com's story by Charles Toutant.

Javier Nava and Brian Nunez, who were at the Orlando nightclub when a lone gunman killed 49 people, hired the firm when the office manager, John Groff, convinced them to go to Las Vegas — ostensibly to help recruit potential clients following the 2017 mass shooting at the Mandalay Bay. That's when things got personal: Groff sent them sexually graphic text messages and pornographic images . (The Benedetto firm and Groff say the complaint is inaccurate and omits information.)

But Groff's “lengthy criminal record” is in the complaint. Charles told me:

“It's interesting that Groff took Nunez and Nava (and other Pulse victims apparently) on this road trip to Las Vegas, Sacramento, Riverside, Arizona, to sign up clients — I never heard of a New Jersey/Philly law firm doing something like that. Also, when Nunez and Nava resisted his advances, Groff began to drive 'like a madman' and nearly caused several accidents.”

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TCPA Clarity on Hold

The 9th Circuit refused to dial back the definition of “autodialer” in the TCPA(Telephone Consumer Protection Act) — in fact, the appeals court broadened it. Law.com's Ross Todd had this story on the ruling, which defined autodialers as devices “with the capacity to dial stored numbers automatically,” rather than just those that are able to generate numbers randomly or sequentially. Abbas Kazerounian(Kazerouni Law Group), whose client sued after getting automated text messages from a gym, said the decision would have a “massive impact on TCPA litigation.”

But he also acknowledged there was now a split with the 3rd Circuit, and the ruling also is at odds with a D.C. Circuit's decision setting aside the FCC's orderexpanding the definition of “autodialer.”

Defense lawyers were quick to point that out. Drinker Biddle's Justin Kay wrote on the firm's TCPA blog:

“Given the potential significance of this decision (including the fact that in the Ninth Circuit, every smart phone is arguably an ATDS, an outcome the D.C. Circuit specifically identified in ACA International as “an unreasonably expansive interpretation of the statute”), we expect that the defendant (and amici) will seek further review. The ruling may also accelerate the FCC's own efforts to address this and other TCPA-related issues now pending before the Commission.”

Yahoo's Breach Bargain

Yahoo has settled all the consumer class actions over its data breach. Court documents revealed an “agreement in principle” but gave no details about the deal. SEC filings mentioned that Yahoo had set aside $47 million in additional expenses for class actions related to the breach. Lawyers told U.S. District Judge Lucy Koh that they would file a motion for preliminary approval of the settlement by Oct. 22.

The looming question is: What's Koh going to think of their attorney fee request? On Feb. 1, Koh told lawyers at four plaintiffs' firms in the data breach litigation against Anthem she was “deeply disappointed” after they asked for $38 million in fees for 49 additional law firms (she even brought in a special master, but, last month, approved $31 million in fees, calling the work “exceptional”).

She also told Yahoo breach lawyers: Reveal any additional law firms brought into the case. In May, they did just that — asking to bring in four additional law firms for depositions (see here). “The work to be performed does not require the attorney to learn the liability case or duplicate effort,” they wrote.

Who Got the Work?

A federal judge in Pennsylvania has appointed 11 plaintiffs lawyers to lead the multidistrict litigation over Merck's shingles vaccine, Zostavax. Morgan & Morgan's Michael Goetz and Mark Sadaka of Sadaka & Associates are co-lead counsel, with executive committee members Adam Funk of the Potts Law Firm and Virginia Anello of Douglas & London. Goetz said in a statement: “We have assembled a diverse and extremely talented group of lawyers with the experience, commitment and resources to skillfully steer this litigation.”

More News for the Week:

Facebook Trauma: Facebook got hit with a class action alleging it is traumatizing its content moderators with images of “child abuse, rape, torture, bestiality, beheadings, suicide, murder and other forms of extreme violence.” The lawsuit claims that other Internet service providers distort the images or provide counseling for PTSD (Facebook says it provides counseling and other psychological support). The suit seeks a medical monitoring fund.

Uber Restarts: Uber knocked out certification of a class of drivers with a 9th Circuit win on Tuesday. The panel found that an arbitration contract prevented drivers from bringing a worker misclassification class action. It cited the U.S. Supreme Court's decision this year in Lewis v. Epic Systems, which plaintiffs lawyer Shannon Liss-Riordan (Lichten & Liss-Riordan) said “removed one of our remaining arguments.”

To Arbitrate or Not?: The 11th Circuit, in a matter of first impression, ruled last week that a court, not an arbitrator, should decide whether a class action should be arbitrated. My story says the ruling found class actions are fundamentally different from individual cases. But be careful how you write the arbitration contract: The panel's majority sent the case to an arbitrator anyway, citing the contract's broad language. The dissent noted the contract said nothing about class actions.

Talc Trial Dissipates: A deadlocked jury prompted a mistrial in the 6th trial over allegations that Johnson & Johnson's baby powder caused mesothelioma. After a month of trial, the jury spent a week deliberating over the case. Plaintiff's attorney Jay Stuemke (Simon Greenstone Panatier) told me the case would be reset for trial. And get this: One juror actually asked if he could come watch, according to CVN's coverage.