Welcome to Critical Mass, Law.com's weekly briefing on class actions and mass torts. Here's what's happening: A judge allowed most of the claims in a key opioid case to go forward. Controversy over a LaCroix class action bubbles over. And find out what the DOJ wants from this asbestos trust.

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Key Opioid Order Comes Down

A judge's report in a key case over the opioid epidemic could have a big impact on the multidistrict litigation, which has surpassed 1,200 lawsuits. U.S. Magistrate Judge David Ruiz's report and recommendation on Friday allowed most of the claims, including racketeering and fraud, to go forward.

Ruiz isn't the first judge to address dismissal motions in an opioid litigation, and his report comes in a single case in Ohio. But, if adopted, it could impact many more cases waiting in the wings, with motions to dismiss pending.

Among them: A pair of cases brought by two Native American tribes. On Friday, 448 of the 573 “federally recognized tribes” filed an amicus brief opposing motions to dismiss those cases. Coming so close to Columbus/Indigenous Peoples Day, it's a timely read:

“In many ways, the opioid epidemic has become yet another painful reenactment of past harm and abuse inflicted on Indian Country, compounding historical trauma from which Tribal Nations have not fully healed,” the brief says. “That history should not be repeated here, and these actions should not be dismissed.”

When asked about Ruiz's report, Timothy Purdon (Robins Kaplan), one of the lawyers representing the tribes in the amicus brief, told me: “We're optimistic and hopeful the claims of those two tribes will overcome the motions and move forward.”

Fizzy Water Case Gets a Lot of Buzz

A class action has alleged that LaCroix sparkling water isn't “all natural,” or “100% natural,” as its label says, but contains synthetic compounds used in cockroach insecticide. Here's the complaint, which demands that National Beverage Corp.change the labels on its popular drinks.

Beaumont Costales filed the case on Oct. 1. But consumers haven't stopped talking about it, prompting National Beverage to chastise what it called a “false” and “defamatory” lawsuit over which it would “seek actual and punitive damages.” Michael King, special corporate counsel for National Beverage, added: “There are neither sugars nor artificial ingredients contained in, nor added to, our LaCroix products. All of our ingredients are certified as natural.”

Maybe grab a coconut water instead? In fact, a federal judge just dismissed a class action alleging that Vita Coco's “Born in Brazil” slogan misled consumers into believing that its coconuts came from Brazil. Vita Coco attorney Melissa Pallett-Vasquez (Bilzin Sumberg) had this amusing remark about the faults of the case, according to my colleague Raychel Lean's story:

“In one of the depositions, a woman took everything that was on the package as absolute truth, including a catchy phrase that said, 'More potassium than a banana (don't tell the monkeys).' I inquired as to whether or not she thought that Vita Coco was asking her to talk to monkeys, or not to tell the monkeys, and she said, 'Yes, I do.' ”

 

 

The DOJ's Asbestos Act

Fraud allegations in asbestos bankruptcy trusts aren't new. But on Oct. 1, the trust for defunct asbestos manufacturer DII Industries posted this update on its website saying it had suspended payments after the U.S. Justice Departmenthanded it a “civil investigative demand.” The DOJ wants information about settlement agreements with the trust's claimants.

The announcement spurred reaction from tort reformers like Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, who said: “Evidence of fraud and abuse in asbestos litigation and bankruptcy claims has been evident for years, and we applaud efforts by the Department of Justice to take this corruption seriously.”

It also comes as a midyear report by consulting firm KCIC found asbestos filingscontinue to plummet: They fell 14 percent this year when when compared to the same period in 2017.

Who Got the Work?

Covington & Burling's Paul Schmidt scored big wins for pharmaceutical companies this month. Schmidt and Covington's Michael Imbroscio, along with Robert Simpson (Shipman & Goodwin) and Sharla Frost (Tucker Ellis), won their third jury verdict on Friday for Boehringer Ingelheim in a Connecticut trial over blood thinner Pradaxa (plaintiff's attorney was Brian Perkins of Meyers & Flowers). And, on Oct. 3, Schmidt, with Edward Dauber (Greenberg Dauber), won a ruling for Hoffmann-La Roche: the New Jersey Supreme Court dismissed 500 cases brought over anti-acne drug Accutane. (David Buchanan of Seeger Weiss was plaintiff's attorney).

Here's what else is happening:

Chesley Chapter Closes: The law firm of disbarred Cincinnati plaintiff's attorney Stan Chesley has agreed to settle a lawsuit brought by hundreds of former clients. The case dates back to 2014, when a Kentucky judge found that Chesley's firm, defunct Waite, Schneider, Bayless & Chesley, owed clients $42 million after pocketing much of a $200 million settlement of litigation over diet drug fen-phen. Earlier this year, the 6th Circuit refused to unfreeze the assets. A judgment filed last week in the case was for $19.2 million plus interest. The Cincinnati Enquirer pegged the total at $23.5 million.

Green Light: A federal judge in the Volkswagen emissions litigation refused to dismiss a case brought on behalf of people who sold their cars before the scandal erupted in 2015. Here's my story. U.S. District Judge Charles Breyer said the case brought “relatively unique allegations” that those car owners suffered economic damages. He also allowed racketeering claims to go forward against software company Robert Bosch.

No MGM MDL: MGM lost its bid to coordinate a dozen lawsuits brought over last year's mass shooting in Las Vegas (most of which MGM filed against the victims). The MDL panel, however, ordered 20+ price fixing lawsuits against broadcasters Tribune and Sinclair, plus, a new lawsuit that retailer Bon-Ton filed on Friday, to Illinois. And an MDL request for 85 lawsuits alleging that firefighting foam has caused residents to get sick just got another case: The city of Dayton, Ohio, filed a lawsuit last week over Wright-Patterson Air Force Base.

Thanks for reading Critical Mass. See you next week!