Welcome to Critical Mass, Law.com’s new briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. This week, a class action expert puts limits on attorney fees in the NFL concussion case, and the 5th Circuit asks about reassigning the judge in the appeal of a $502 million hip implant verdict. The second New Jersey bellwether trial over alleged defects in surgical pelvic mesh has resulted in a $15 million plaintiffs’ verdict. And are you a lawyer involved in the growing litigation over opioids? Better have that holiday shopping done — there’s some deadlines coming up next week.

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NFL Concussion Fee Bid Out of Bounds?


Harvard Law School professor William Rubenstein has recommended a 15% cap on contingency fees for plaintiffs lawyers representing individual players in the $1 billion NFL concussion settlement. Here’s the full report and Law.com’s Max Mitchell with the story. Rubenstein also rejected the idea that an additional 5% to go to the common benefit fund for class counsel, who have already asked for $112.5 million in fees.

Why it matters: Rubenstein isn’t just an expert on class actions. He’s the author of the frequently cited 11-volume treatise called “Newberg on Class Actions.”

Back in September, I reached out to Rubenstein for a story on how judges frequently used academic studies to decide attorney fees, particularly in large class action settlements. “Judges do take the role seriously,” Rubenstein told me. “And they understand they’re a bulwark against excessive fees from the class members’ money.”

What the report said: Rubenstein called the 5% set-aside “troubling in that it implies that class counsel sought to significantly enhance their own fees without significantly enhancing their own work, or most importantly, their clients’ recoveries.”

Mass torts expert Elizabeth Burch, a professor at the University of Georgia School of Law, agreed with that conclusion. “There is a disconnect between class counsel receiving all of their attorneys’ fees up front and (at least some) class members waiting for decades for their payment. So, not permitting the 5% set aside on top of the $112.5 million strikes me as reasonable.”

Popcorn, Anyone?


Kirkland & Ellis partner Paul Clement had just begun listing a host of evidentiary errors that led to a $502 million hip implant verdict against his client, DePuy Orthopaedics, when he got this unexpected question from 5th Circuit Judge Jerry Smith:

“You’re not making a request this would be retried to a different district judge. I assume you’re not suggesting that the errors are serious enough that we’d consider that alternative, which is rarely granted?”

That opened a window, at least a crack, in favor of Johnson & Johnson, DePuy’s parent corporation. The New Jersey-based company has long criticized U.S. District Judge Ed Kinkeade for establishing jurisdiction over consolidated trials in 9,300 cases in multidistrict litigation in the Northern District of Texas. Those trials have lead to other verdicts of $1.04 billion and $247 million last month.

Smith, if you recall, wrote a 5th Circuit opinion in October in a separate case finding Kinkeade had committed “grave error” in establishing jurisdiction in those trials.

But in oral arguments this month, Smith said he wasn’t sure he could reassign the case if nobody asked him to. In a supplemental brief filed this week, Clement wrote that he could. “In short, the court has the power to reassign a case sua sponte and has done so in practice.”

Check out the oral arguments between Clement and plaintiffs attorneys Ken Starr and Mark Lanier. The name of Saddam Hussein comes up a lot, and at one point a panelist remarked: “I feel like I’m going to have to get some popcorn.”


Second Time’s a Charm


A jury came back on Thursday with a $15 million pelvic mesh verdict against Johnson & Johnson’s Ethicon division in the second bellwether case in New Jersey state court, where 2,000 pelvic mesh cases are pending against Ethicon. Here’s Law.com’s Charles Toutant with the story.

It’s a big win for Adam Slater of Mazie Slater, who got an $11 million verdict back in 2014 in the first pelvic mesh trial in New Jersey against Ethicon. Slater noted that the award included $10 million in punitive damages. With the second case over, he said, “every single important legal ruling has been made, so trying these cases going forward is going to be very streamlined.”

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Here’s what else you need to know today: An Aspiring Actor, Maybe: It was a long shot. But with the onslaught against class actions this year, the plaintiffs in a case over AT&T’s “unlimited” service plans challenged the arbitration of their consumer fraud allegations by claiming that the Federal Arbitration Act was unconstitutional. Why? Because it violated their First Amendment right to petition the government.

AT&T turned to Mayer Brown’s Andrew Pincus for the appeal. In the end, the 9th Circuit found the plaintiffs couldn’t even prove AT&T was a “state actor” – a necessary requirement to assert constitutional violations. Here’s my story.

Battle Over Lawyer Ads: Fewer of us are watching television commercials these days, but a lawyer in Philadelphia wants to see more of them. In particular, Jeff Rosenbaum of Rosenbaum & Associates has filed a motion to compel Morgan & Morgan to turn over its past commercials as part of his suit alleging the Florida firm’s ads in Pennsylvania are deceptive and have caused him to lose business. Law.com’s Lizzy McLellan has that report.

What Holiday Break?: There won’t be much of a holiday break for lawyers retained by governmental bodies to bring lawsuits over the opioid epidemic (the latest of which is Harris County, Texas). U.S. District Judge Dan Polster in the Northern District of Ohio, assigned last week to oversee all opioid cases in federal court, has asked that motions for lead counsel be filed by Dec. 20. Given that the plaintiffs bar has come out in droves to bring opioid cases, the filings should be plentiful.

Polster also wants suggestions for a special master by Dec. 20 and ideas by Jan. 5 on how to manage the MDL.

The next conference is set for Jan. 9.

Opioid lawyers: Better put down that egg nog and get crackin’…