Critical Mass: Midterm Class Actions | New Settlement Guidelines in California | J&J's New Firm for Talc Retrial

Welcome to Critical Mass, Law.com’s weekly briefing on class actions and mass torts. Here’s what’s happening: Voting is over, but election-related class actions remain. The Northern District of California came out with new guidelines on class action settlements -- what are they? And Johnson & Johnson made a last-minute switch of its legal team in a talc retrial that began this week.

Send your feedback to abronstad@alm.com, or find me on Twitter: @abronstadlaw.

A Touch of Class in Tuesday's Election

Election Day is over! Phew. But it left behind a few class actions. Here’s some of them:

➤ BuzzFeed News reported that two Ohio voters arrested and jailed after the deadline to file an absentee ballot brought a class action on Tuesdayseeking an emergency order. A federal judge granted their request -- but not as to the entire class.

➤ A class action filed on Oct. 19 alleged that the campaign for Beto O’Rourke, the Democratic nominee for U.S. Senate in Texas, sent unsolicited textsto prospective voters. The Fort Worth Star-Telegram reported on the lawsuit, which alleged that the Beto for Texas campaign violated the Telephone Consumer Protection Act.

➤ In California, Proposition 11 required emergency ambulance employees in the private sector to remain on call during rest breaks. If that sounds like a response to a court ruling, that’s because it was. A 2016 ruling by the California Supreme Court in an employment class action called Augustus v. ABM Security Services found that California labor law prevented security guards from carrying pagers or radios with them while on break, according to this write-up by Seyfarth Shaw,

Got a Class Action in California? Read This First

The Northern District of California updated its procedural guidelines for class action settlements, some of the most detailed in the nation, in a court advisory issued Nov. 1.

Among other things, the guidelines state that class counsel “should include information about the fees they intend to request and their lodestar calculation,” and that the parties “should also identify any relationship they or their counsel have with the proposed cy pres recipients.” There's also a requirement that a “post-distribution accounting” be filed within 21 daysafter the settlement gets distributed.

I checked in with two law professors who provided input on the revisions. Here’s what they had to say:

William Rubenstein (Harvard Law School): “The project was important, particularly in terms of the transparency it brings to class action settlements. The new guidelines themselves are thorough, important, and set a standard for careful review of class actions in the federal courts."

Brian Fitzpatrick (Vanderbilt University Law School): “I am very excited about the new requirement to provide the court with data after the settlement has been distributed about where and how the money was delivered. Indeed, I wholeheartedly agree with everything in the guidelines except the mandate to provide the court with attorney lodestar information. That will only lead to more lodestar crosschecks—and the negative effects the crosscheck has on class counsel’s incentives.”

Who Got the Work?

A retrial over whether Johnson & Johnson’s baby powder caused a woman to die from mesothelioma began this week in South Carolina. Here’s the summary from Courtroom View Network, which is broadcasting the retrial, and here’s my coverage of the original trial, which ended with a deadlocked jury. The case was brought by the widow of Bertila Boyd-Bostic, a lawyer who died at age 30. It’s the same plaintiffs’ team from Motley Rice led by W. Christopher Swett. But Johnson & Johnson fought to push the trial back because its lead counsel Michael Brown (Nelson Mullins) had a scheduling conflict. Instead, Billy Martin (Barnes & Thornburg) did opening statements. He leads a defense team that includes fellow partner Sarah Johnston and Sandra Ko, of counsel.

Here’s More News:

➤ Opioid Objections: Companies sued over the opioid epidemic have objected to an Oct. 5 report and recommendation that allowed most of the claims in a key bellwether case to go forward. My story cited these descriptions by the defendants about U.S. Magistrate Judge David Ruiz’s report: “A boundless expansion of tort doctrine.” “Puts the cart before the horse.” “Kicks the can down the road.” Even plaintiffs’ lawyers had something to complain about, calling the report’s dismissal of some claims a “substantive change to public nuisance law.”

➤ Rounded Down: Plaintiffs’ lawyers who managed to avoid having a jury’s $289 million Roundup verdict entirely obliterated last month have agreed to accept San Francisco Superior Court Judge Suzanne Bolanos’ reduced $39.25 million award on punitive damages. Plaintiff’s firm Baum Hedlund said in a statement that the now $78 million verdict still sends “a strong message” against Monsanto: “While we think the punitive damages reduction was not appropriate, Judge Bolanos’ final ruling did weigh the liability and punitive conduct evidence according to the required standard: in a light most favorable to the prevailing party, thus preserving the jury’s basic findings.”

➤ Stryker Settlement: Lawsuits filed over Stryker hip implant femoral head components have settled. Law.com’s story says the deal is confidential but involves the 450 lawsuits coordinated in multidistrict litigation in Boston federal court and several state court cases in New Jersey. The settlement oversight committee was: Pete Flowers (Meyers & Flowers), C. Calvin Warriner (Searcy Denney), Walter Kelley (Bernheim Dolinsky Kelley), Michael McGlamry (Pope McGlamry), Joseph Osborne (Osborne & Francis), and Ellen Relkin (Weitz & Luxenberg). Stryker’s lawyer was Kim Catullo (Gibbons P.C.).

➤ Well Done: Remember that $5 million class action against McDonald’sover cheese surcharges added to Quarter Pounder and Double Quarter Pounder hamburgers? A federal judge in Florida dismissed the case. Law.com reports that defense firm Buchanan Ingersoll convinced U.S. District Judge William Dimitrouleas that the plaintiffs, represented by the Lavin Law Group, had no standing. The plaintiffs’ “unwanted cheese vexation,” the judge wrote, was “absurd” and “fails.”

A quick note to my readers: My colleague Max Mitchell will be filling in for me next week. Thanks for reading Critical Mass!