Critical Mass: Reading Kavanaugh's Record for Clues on Class Actions. Plus, J&J Copes With Talc Megaverdict

Welcome to Critical Mass, Law.com’s weekly briefing on class actions and mass torts. I’m Amanda Bronstad in Los Angeles. U.S. Supreme Court nominee Brett Kavanaugh has a thin record on class actions and mass torts -- but there are some clues about how he’d rule. What could Johnson & Johnson argue in appealing last week’s $4.7 billion talcum powder verdict? And I asked a lead plaintiffs’ attorney in this month’s record $1.5 billion shareholder settlement in the Netherlands how his firm brings class actions in Europe. Send your feedback to abronstad@alm.com, or find me on Twitter: @abronstadlaw.

What Kavanaugh’s Record Says About Class Actions, Torts

As a judge on the U.S. Court of Appeals for the D.C. Circuit, Brett Kavanaugh hasn’t ruled in many class actions or mass tort cases. But the U.S. Supreme Courtnominee has a few decisions out there that provide a glimpse of how he’d rule in such cases. I wrote a story (see here) that looks at many of his rulings. Here are a few of the things he’s said: ➤ In Cohen v. United States (2011): “Plaintiffs’ ultimate objectives are class certification and a court order that the U.S. government pay billions of dollars in additional refunds to millions of as-yet-unnamed individuals who never sought refunds from the IRS or filed tax refund suits. It seems that plaintiffs have deliberately avoided filing individual refund claims with the IRS and filing tax refund suits because they think they have a better chance of obtaining class certification if they don't take those steps. And class certification is a necessary prerequisite to the class-wide jackpot plaintiffs are seeking here.” ➤ In Mills v. Giant of Maryland (2007): “Tort law does not provide protection from the obvious or ‘widely known’ risks of consuming a particular food. The risk that some people will get gas after consuming certain foods, such as milk, is widely known. A bout of gas or indigestion does not justify a race to the courthouse.” ➤ In Bais Yaakov of Spring Valley v. FCC (2017): “Congress drew a line in the text of the statute between unsolicited fax advertisements and solicited fax advertisements. Unsolicited fax advertisements must include an opt-out notice. But the Act does not require (or give the FCC authority to require) opt-out notices on solicited fax advertisements. It is the Judiciary’s job to respect the line drawn by Congress, not redraw it as we might think best.” ➤ In SeaWorld of Florida v. Perez (2014): “ I take no position here on whether SeaWorld – or for that matter the NFL or NASCAR – should be subject to more stringent government regulation or liability, or otherwise should voluntarily make its activities safer. That policy question is not before us. My legal disagreement with the majority opinion boils down to one basic question: Who decides? Under current law, it is not the Department of Labor.”

A Titanic Talc Verdict

When plaintiffs lawyers in Los Angeles scored a $417 million verdict last year against Johnson & Johnson, it was the largest talcum powder trial award to date. No longer. Last week, jurors in St. Louis came back with a nearly $4.7 billion verdict against Johnson & Johnson. My colleague Max Mitchell wrote a story on the verdict here. Not only was the award massive -- to be fair, the case encompassed the cancer diagnoses of 22 women--but it was the first time plaintiffs lawyers sought to prove that talcum powder linked to ovarian cancer contained asbestos. It also was a new trial team: Mark Lanier, Lee Cirsch, Rachel Lanier, Robert Leone, Michael Akselrudand Monica Cooper (The Lanier Law Firm), as well as Eric Holland (Holland Law). No doubt Johnson & Johnson will appeal. Max had a story (see here) focused on the likelihood that Bristol-Myers Squibb v. Superior Court of California could come up. But Johnson & Johnson, in its official statement, also hinted that the consolidated trial confused the jury, which “awarded the exact same amounts to all plaintiffs.” The jury awarded $550 million in compensatory damages -- about $25 million to each plaintiff or couple (check out the 68-page verdict form here). As for that $417 million verdict? Well, it was erased by the trial judge. Plaintiffs lawyers Mark Robinson (Robinson Calcagnie), Wendy Lascher (Ferguson Case Orr Paterson) and Stuart Esner and Holly Boyer (Esner, Chang & Boyer) are due to file their appeal todaybefore California’s 2nd District Court of Appeal.

Class Actions Face High Hurdles in Europe

An Amsterdam Court of Appeal approved a $1.5 billion settlement last week on behalf of shareholders of insurer Ageas (formerly called Fortis). The deal is the largest securities settlement to come out of Europe, according to Grant & Eisenhofer, one of the lead plaintiffs’ firms in the case (see the background here). I asked Olav Haazen, a director in the firm’s New York office, about what it takes to bring class actions in Europe. Q: What’s different about shareholder cases in Europe? A: It’s a complicated business. It’s higher risk than U.S. cases are because the laws are different everywhere and, in many circumstances, almost always, the laws are less well developed both in terms of procedural rules -- that will normally be a class action, will be a system, normally not be discovery, normally be higher filing fees and things like that -- as well as substantive law. Q: Do you see this as a growth area? A: I don’t think so. It’s a very long trajectory to get into this business. It’s not that simple. It’s a steep learning curve. You need to have a proper network of local counsel in place, who you can ask questions and set up the case and know you have an answer for sure rather than a vague answer you read on the Internet.

Here's more you need to know today: Recusal Request: Labaton Sucharow has turned to the 1st Circuit in its attempt to force U.S. District Judge Mark Wolf to recuse himself from a securities class action against State Street. Here’s my story. It’s the latest development since a special master recommended that Labaton and two other lead plaintiffs firms return more than $10 million of their $75 million in fees, including a $4.1 million referral payment they failed to disclose. Labaton has objected to the report but insists that Wolf, whose probe morphed from fee irregularities to insinuations of public corruption, can no longer be impartial. Hear Them Roar: Two Orrick partners scored dual defense wins, defeating class certification in gender discrimination cases against Microsoft and Twitter. Here’s Law.com’s story recognizing Lynne Hermle and Jessica Perry, both in Menlo Park, California, as litigators of the week. But: Simpson Thacher had less luck for Twitterafter a federal judge on Monday granted certification of a class of investors who sued over allegedly misleading them about the growth of its daily user base. See that story here. Drinker Departures: Five partners from Drinker Biddle & Reath are taking their class action defense practice to Akin Gump. According to Law.com’s story (see here), former managing partner and class actions team chair Seamus Duffy, former litigation group chair Michael McTigue, Meredith Slawe and Kathryn Deal will now be in Akin’s Philadelphia office, and Michael Stortz will be based in San Francisco. Slawe and Stortz were former vice chairs of the class action group. Corn Flakes, Anyone? Coffee might cause cancer--but what about cereal? A California appeals court ruled on Tuesday (see Law.com’s story here) that the makers of 59 cereal brands don’t have to warn consumers about acrylamide, a chemical on the state’s list of known causes of cancer and reproductive problems. In May, a Los Angeles judge ruled that coffee sellers in California had to post such warnings. But the appeals court found the FDA has urged California regulators to hold off on cereal, which has some health benefits, “unless and until the science supports such a warning.”