Welcome to Critical Mass, Law.com's weekly briefing on class actions and mass torts. First, we look at whether class actions are finally coming to Europe. Also, why Monsanto has some major misgivings about an upcoming Roundup trial. And the AAJ fires back at “Judicial Hellholes” with its own report of this year's “worst corporate conduct.” 

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Europe Votes on Class Actions, With Caveats

Europe got one step closer toward allowing class actions in all 28 member states: A key committee voted on Dec. 6 for a proposal that would give the entire European Union a form of collective redress in the courts.

As Law.com's Sue Reisinger reports, the proposal voted on by the EU legal affairs committee, still has to go to the full Parliament and the European Council. But the U.S. Chamber of Commerce's Institute for Legal Reform, which has been an outspoken critic of the proposal, is advocating for a host of changes to be made. Its president, Lisa Rickard, called the proposal “poorly written” and without “clear safeguards to prevent fraud and abuse.”

Yet Laura Antonini, policy director at the Consumer Education Foundation, who works with Consumer Watchdog's Harvey Rosenfield, had her own complaints. She told me the proposal, once promising for consumers, now imposes too many hurdles for anyone to bring a class action in Europe. For instance, it prohibits contingency fees and makes losing plaintiffs pay. Antonini told me:

“The incorporation of the 'loser pays principle,' together with the new prohibition on contingency fees, slams shut the courthouse doors for most legitimate cases because no non-profit organization will have the necessary resources to bring a collective action in light of these new provisions.”

Another Round for Roundup

Fresh off the heels of a $289 million verdict, plaintiffs suing Monsanto over its herbicide Roundup are gearing up for another trial—this time, in federal court.

As I reported earlier this week, Monsanto's lawyers have raised concerns about juror bias. That's in large part because the Feb. 25 trial will be in San Francisco, where a jury came out with the verdict for plaintiff Dewayne “Lee” Johnson, who sued over his non-Hodgkin's lymphoma. According to Monsanto, U.S. District Judge Vince Chhabria, overseeing the Roundup MDL, agreed at a Dec. 5 hearing “to separate potential jurors into those who are aware of the verdict in Johnson and those who are not.”

But juror bias isn't Monsanto's only concern. On Monday, Monsanto filed a brief to “reverse bifurcate” the trial into two phases: One for causation, and one for damages. Why? The idea is to sideline the chief argument from the plaintiffs: that the International Agency for Research on Cancer found Roundup ingredient glyphosate to be a possible carcinogen, despite the findings of numerous other regulatory agencies. Attorney Brian Stekloff (Wilkinson Walsh) wrote:

“That approach is particularly appropriate here because it will allow the jury to evaluate causation based on the actual scientific studies and evidence, and avoid potential confusion or distraction created by the assessments of that evidence by regulators and IARC, and by arguments about the methods and motives of those bodies.” 

Plaintiffs' response is due today on the bifurcation matter.

The Naughty List

Coming a week after the American Tort Reform Association's annual “Judicial Hellholes” ranking, the American Association for Justice released its own report on what it dubs the top corporate malfeasors. On Tuesday, the plaintiffs' bar group issued the Worst Corporate Conduct of 2018, its second annual report on the topic.

Topping the list is Navient Corp. for its alleged mishandling of student loans. Its conduct has attracted class actions and a Consumer Financial Protection Bureau investigation. Also on the list: ExxonMobil and other oil giants over climate change; State Farm for manipulating the election of an Illinois Supreme Court judge; Takata and General Motors for faulty airbags; Theranos for blood testing technology that didn't work; Nestle over child slavery; and USA Gymnasticsbecause of the Larry Nassar sex abuse scandal.

Who Got the Work?

Mark Allison, a New York partner at Caplin & Drysdale, was appointed lead defense counsel for pension plans and others sued in 140 lawsuits brought by Denmark's taxing authority, SKAT, to recoup $2.1 billion allegedly lost in a tax fraud scheme. Hughes, Hubbard & Reed's Sarah Cave, in New York, represents SKAT. U.S. District Judge Lewis Kaplan issued the order on Nov. 20 in the multidistrict litigation.

Here's some more going on:

➤➤ Boies Boost: Plaintiffs' attorney David Boies praised class actions at a University of Miami event last week. The Class Action and Complex Litigation Forum featured several judges, with topics including best practices in multidistrict litigation and third-party litigation financing, according to Law.com's story. Boies, of Boies Schiller Flexner, acknowledged the criticisms of class actions but warned against what he called the “lodestar trap,” which he said does nothing but prolong cases.

➤➤ Data Dump: Facebook has moved to dismiss lawsuits brought over Cambridge Analytica, insisting that plaintiffs' lawyers had turned the consolidated class action into a “broadside against Facebook's business model.” The company claims plaintiffs don't have injuries to show standing and, furthermore, consented to its use of their personal data when they signed up. A hearing is set for Jan. 23.

➤➤ Ouch! It was a bad week for plaintiffs firms. Law.com reports that Morgan & Morgan lost its bid to overturn a $5 million malpractice verdict in Florida; Provost Umphrey was sued in Texas for negligence; and a Houston seafood firm filed a malpractice case against Florida's Merlin Law Group and one of its attorneys, Sean Shaw, former Democratic nominee in this year's Florida attorney general race, over a Deepwater Horizon oil spill claim.

Thanks for reading Critical Mass. See you next week!