Critical Mass: Class Action Lawyers Searching for Clues to Kavanaugh's Approach. Plus, RoundUp Cancer Claim Goes to Trial


Welcome to Critical Mass,'s weekly briefing on class actions and mass torts. I'm Amanda Bronstad in Los Angeles. What does Brett Kavanaugh's nomination to the U.S. Supreme Court mean for class action lawyers? The first cancer trial over Monsanto's RoundUp herbicide opened this week. And class actions could pile up following the Supreme Court's "no stacking" ruling. Send your feedback to, or find me on Twitter: @abronstadlaw.

What Kavanaugh Might Mean for Class Actions

President Donald Trump's nominee for the U.S. Supreme Court, D.C. Circuit Judge Brett Kavanaugh, has a history of dialing back federal regulatory agencies. And that could spell trouble for plaintiffs' lawyers in class actions. See Tony Mauro's coverage of the nominee for here and here. Kavanaugh's record on class actions is unclear, but a Sept. 29 decision could be a bad sign for plaintiffs lawyers pursuing class actions, according to Thomas Gormanof Dorsey & Whitney's Washington D.C. office. He spoke to Barron's (for this story)on Kavanaugh's dissent in a U.S. Securities and Exchange Commission case that's now before the Supreme Court. The decision, if upheld, could have a "huge impact on class actions," Gorman told me in an interview. Here's the case: In Lorenzo v. Securities and Exchange Commission(see here), the D.C. Circuit lifted an investment broker's lifetime ban on trading. The 2-1 opinionfound the broker did not technically make the false statements -- since his boss ordered him to do so -- yet still played an "active role" in the fraud. Kavanaugh found the broker shouldn't be liable at all. Gorman told me: "If the SEC's view on 'scheme liability' under Section 10(b) is sustained it not only eases the burden of proof for the agency in its cases, it would permit class action lawyers to expand the reach of their cases to include a larger group of defendants. That would be very significant for the class action bar."

Trial Starts in Case Against Monsanto

The first trial to test allegations that Monsanto Co.'s herbicide RoundUp caused a man to get terminal cancer opened this week in San Francisco. Here's my summaryof the case and coverage of the opening statements, which lasted all of Monday. Lawyers drilled jurors with the scientific studies and regulatory actions already out there - most of which focus on RoundUp ingredient glyphosate. R. Brent Wisner(Baum Hedlund) spoke on behalf of plaintiff Dewayne "Lee" Johnson, a former school groundskeeper diagnosed with non-Hodgkin's lymphoma four years ago. Monsanto attorney George Lombardi (Winston & Strawn) told jurors the science just wasn't there to support the plaintiff's claims. Then there's this: In separate federal multidistrict litigation over RoundUp, U.S. District Judge Vince Chhabria in California gave plaintiffs' lawyers the green light this week to pursue claims that glyphosate causes non-Hodgkin's lymphoma. Ross Todd's story for is here. It wasn't exactly a glowing endorsement: Chhabria called it "a very close question" and a "daunting challenge" for plaintiffs' lawyers going forward.

No Stacking of Class Actions ... But Piling On?

A U.S. Supreme Court decision in a securities case last month that banned the stacking of class actions could actually prompt a pile up of class actions. A quick backgrounder: The Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, held on June 11 in China Agritech v. Resh that plaintiffs lawyers couldn't use a 1974 precedent to file securities class actions past the statute of limitations (see Marcia Coyle's story here for The unanimous decision was a big win for the defense bar, which had sought to stop the practice of lawyers filing new cases with different plaintiffs after losing certification in a class action. Not so fast. Christine Reilly of Manatt, Phelps & Phillips told me the ruling could actually prompt plaintiffs attorneys to file more cases. "An argument was raised in that case that it could lead to more class action complaints being filed. What they mean by that is if you know you cannot keep bringing these cases once the statute of limitations expires, there may be a motivation or incentive for plaintiff lawyers to get their case in before the statute of limitations expires. Whether that is actually going to happen is a second question."

Green Light for VW Settlement

The 9th Circuit has upheld the Volkswagen emissions settlement. See's story by Ross Todd here. Objectors had challenged U.S. District Judge Charles Breyer's approval and class certification of the deal, which involved a cash fund of more than $10 billion to the owners and lessees of about 475,000 vehicles. In particular, objectors said the deal failed to adequately represent "eligible sellers," or class members who sold their vehicles in the months after the defeat device revelation in 2015 but before the settlement, and included excess funds that reverted to Volkswagen. A much-ballyhooed 9th Circuit decision earlier this year called In re Hyundai and Kia Fuel Economy Standards (see here and here) threatened to unravel the Volkswagen settlement -- but ultimately had no impact. In a footnote, this week's panel wrote: "This conclusion is not affected by this court's recent decision in In re Hyundai & Kia Fuel Economy Litigation...Unlike in that case, the district court here provided a thorough predominance analysis under Rule 23(b)(3)."

Who Got the Work?

Zimmer Biomet Holdings Inc. has turned to Steve Bennett of Faegre Baker Daniels to defend the manufacturer in 22 lawsuits brought over its M/L Taper hip implants. A partner in the Fort Wayne, Indiana, office, Bennett appeared on July 5 before the U.S. Judicial Panel on Multidistrict Litigation. Plaintiffs lawyers have sought to transfer all the cases to U.S. District Judge Donovan Frank of Minnesota, who oversaw multidistrict litigation over Stryker hip implants. Faegre Baker Daniels previously represented Zimmer in multidistrict litigation over its Durom Cup hipimplants that settled in 2016.
Here's more you need to know today: Talc Countdown: A talcum powder trial against Johnson & Johnson involving 22 women who got ovarian cancer could wrap up this week. Closing arguments are expected on Wednesday, with a possible verdict on Friday, according to lawyers in the trial. Here's my previous coverage on the case. Courtroom View Network is broadcasting the trial here. Donziger Suspended: A New York appeals court has suspended Steven Donziger from practicing law indefinitely, relying on U.S. District Judge Lewis Kaplan's 2014 finding that the New York plaintiffs lawyer won a $8.6 billion judgmentagainst Chevron Corp. through fraud and coercion.'s story is here. Donziger, who's been in practice since 1997, won the judgment for environmental damage to Ecuador by a Chevron predecessor. Risperdal Review: The Pennsylvania Supreme Court has agreed to consider whether thousands of lawsuits brought over Risperdal should be barred on statute of limitations grounds. See's story here. The appeal concerns Philadelphia Court of Common Pleas Judge Arnold New's ruling granting summary judgment to Janssen Pharmaceuticals. According to lawyers, the issue affects more than 40% of the growing 6,700 cases brought over Risperdal in Pennsylvania. Testosterone Toss: A $140 million verdict over "low-testosterone" treatment was tossed out last week. Here's my story. Last year, U.S. District Judge Matthew Kennelly in Illinois tossed a $150 million verdict, prompting a retrial that ended with a $3.2 million award. Both awards came from bellwether trials in the multidistrict litigation alleging AbbVie and other companies misrepresented the safety of their "low-T" treatments. In both cases, Kennelly found the jury's findings to be inconsistent -- but for different reasons.

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