Welcome to Critical Mass, Law.com's weekly briefing for class action and mass tort attorneys. Coronavirus halted this week's MDL conference at Duke Law, which is reeling from the sudden death of professor Francis McGovern. A new survey finds out which class action attorneys charge higher hourly rates: plaintiff or defense? And find out who's repping Evenflo in "Big Kid" booster seat lawsuits.

Feel free to reach out to me with your input. You can email me at [email protected], or follow me on Twitter: @abronstadlaw.

Professor Francis McGovern of Duke University School of Law.

 

Duke Law MDL Program Hit by Coronovirus, Professor's Death

A certificate program at Duke Law School focused on getting leadership appointments in multidistrict litigation was abruptly postponed due to the coronavirus, which already has shuttered courthouses, law offices and this month's opioid trial in New York. Duke's Bolch Judicial Institute was set to begin the three-day program today.

A message posted to the school's website on Tuesday stated: "We have received word that the Governor of North Carolina is declaring a state of emergency today. We will work to reschedule the program as soon as is feasible, but obviously we must put the health and safety of our participants and members of the University community first."

The program was set to feature seven federal district court judges, as well as professor Francis McGovern [Duke Law], a mass tort expert serving as one of three mediators in the national opioid MDL.

McGovern died unexpectedly on Feb. 14 after a fall at his California home. He was 74. A memorial in Washington D.C. took place on Monday, and another is scheduled for April 4 in Ross, California, near where he was an associate professor at the University of California, Hastings, College of the Law.

On Duke Law's website, noted mediator Kenneth Feinberg called McGovern a "founding father of the modern ADR movement," and U.S. District Judge Dan Polster, who last year certified a novel "negotiation class" in the opioid MDL that McGovern helped create, said, "Francis always was the smartest person in the room."

I reached out to others to share their thoughts about McGovern:

Paul Hanly (Simmons Hanly Conroy): "He was a giant of the mass torts and complex litigation bar, sound counsel to state and federal judges faced with dauntingly complex cases, and a consummate teacher, always probing but always listening carefully to the responses."

William Rubenstein (Harvard Law School): "Francis was a giant in the field of complex litigation dispute resolution. He combined decades of experience with unparalleled insight about problem solving and, as importantly, human behavior. I was extraordinarily honored that he asked me to work with him on the opioid litigation for the past two years."

Elizabeth Cabraser (Lieff Cabraser): "Francis McGovern represented the heart and soul of contemporary complex litigation, oriented toward the effective resolution of ever more challenging problems. Every case in which he was engaged was the better for it. Francis was that rare combination of scholar and strategist, historian and innovator. To say his passing leaves a gap that seems impossible to fill is an understatement."

 

In Class Actions, Do Defense or Plaintiffs Lawyers Charge More?

Attorney fees in class actions are a hot topic, with both sides of the "v" often remarking that the other charges higher rates. Turns out, they're about the same. That's according to the National Association of Legal Fee Analysis, which released a first-ever survey this month about the hourly rates that class action lawyers charge.

For the 2020 Class Action Hourly Rate Survey, NALFA emailed "hundreds of thousands" of attorneys, in the nation's 16 largest legal markets over a two-month period, according to Terry Jesse, NALFA's executive director.

The findings: 95% of all class actions fall within the $200-$1,200 hourly rate range for both defense and plaintiffs' counsel at partner and associate levels. Partners for 20 years or more, on both sides, charged between $801 and $900 per hour, while partners with 16 to 19 years of practice charged hourly rates of $701 to $800 for plaintiffs and $601 to $700 for defendants.

Jesse told me:

"We thought that plaintiffs rates would be higher because they're taking on more risk than defense lawyers are. We assumed, yes, plaintiff rates would be higher. We were surprised that defense rates were keeping pace with the plaintiffs' rates, at both the partner and associate level."

Who Got the Work?

Lawrence Scarborough (Bryan Cave) appeared this month before the U.S. Judicial Panel on Multidistrict Litigation as lead counsel for Evenflo Company Inc., which is facing more than a dozen class actions alleging the company falsely claimed its "Big Kid" booster seats were safe for children smaller than 40 pounds and "rigorously" tested for safety in side-impact collisions. The lawsuits followed the findings of a ProPublica investigation reported last month.

Here's what else is happening:

Class Dismissed? The U.S. Court of Appeals for the D.C. Circuit punted on the growing debate over whether the U.S. Supreme Court's jurisdictional holding in Bristol-Myers Squibb v. Superior Court of California applied to class actions. Instead, the majority found in the 2-1 opinion that Whole Foods' motion to dismiss, based in Bristol-Myers, was premature given that the class action wasn't certified. In a lengthy dissent, Judge Laurence Silberman said that did not matter and, furthermore, Bristol-Myers applied.

Pinnacle Payments: The five law firms on the fee committee in the Pinnacle hip implant multidistrict litigation are set to receive more than 75% of an estimated $245 million in common benefit fees and costs. But plaintiffs lawyers at those firms, and the special master whose recommendation got approved this month, said many firms abandoned the litigation after the first trial ended in a defense verdict. A lawyer at one of the five plaintiffs' firms who didn't give up, Mark Lanier (The Lanier Law Firm), went on to win verdicts of $502 million, $1.04 billion and $247 million. His firm is set to receive $77.2 million in fees.

Talc Tale: Johnson & Johnson lost a $9 million verdict in the first mesothelioma trial in Florida over its baby powder. Marc Kunen and Jose Becerra [The Ferraro Law Firm] won the Feb. 27 verdict in Miami for plaintiff Blanca Moure-Cabrera. What's their winning strategy? Kunen suggested: "Simplify everything, and try not to get in the weeds on too many aspects of the medicine and the science."

Thanks for reading Critical Mass! I'll be back next week.