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Critical Mass: High Court Eyes Scope of Class Action Fairness Act. Plus: Diversity Landmark for MDLs

Welcome to Critical Mass, Law.com’s weekly briefing on class actions and mass torts. Here’s what’s going on this week: Public Justice's Paul Bland took on Home Depot this week before the U.S. Supreme Court. For the first time, white males took a back seat in MDL judicial appointments. Find out who’s leading lawsuits filed over gas explosions in Massachusetts last year.

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


Home Depot Tells SCOTUS: Let's Do This


The U.S. Supreme Court heard oral arguments on Tuesday in a closely-watched case about the jurisdictional scope of the Class Action Fairness Act. Here's my Q&A with Paul Bland of Public Justice, who argued Home Depot v. Jackson against Home Depot Associate General Counsel Will Barnette.

The question before the court was whether a defendant may remove a case to federal court under CAFA if a defendant was haled into the case because a plaintiff who had originally been a defendant added counterclaims against it.

Confused? So were the justices, at times, according to the transcript. But they were "intensely engaged," Bland told me after the arguments. "I can’t begin to predict how the court will rule, but a number of the justices' questions showed that they had thought deeply about the case," he said.

I reached out to Lawrence Ebner (Capital Appellate Advocacy), who filed amicus briefs in the case on behalf of DRI—The Voice of the Defense Bar in favor of Home Depot. He said, "I was scratching my head" at Barnette's repeated argument that Home Depot was neither a counterclaim or third party defendant ... just a plain defendant. But he noted that several justices appeared unwilling to expand the 1941 holding in Shamrock Oil & Gas v. Sheets in a way the plaintiff wanted. He told me:

"Based on the justices who asked questions, I think they probably would be leaning in favor of Home Depot because they recognize the policy implications of excluding these types of defendants from the CAFA removal provision. But I think they also recognize that if you really parse the words of the statutory provisions, there are some questions that can be raised about whether a hyper-technical reading of the language would exclude such defendants."


MDL Judges Make Mark on Diversity


For the first time, white male judges made up less than half of all judicial appointments to multidistrict litigation in a calendar year. That’s according to my story, which looked at the 2018 statistics. Of the 28 judges the U.S. Judicial Panel on Multidistrict Litigation appointed last year to new MDLs, only 11 were white males. Not to mention, there were seven minority judges appointed in 2018—more than any other year—and many weren’t novices to MDLs.

I ran those numbers past Jaime Dodge, director of the Institute for Complex Litigation and Mass Claims at Emory University School of Law, who follows diversity issues in MDLs. She told me what’s behind the trend:

“JPML Chairwoman Sarah Vance has been a remarkable leader in this area, believing diversity in leadership ranks adds value in myriad ways—and so it makes perfect sense that under her leadership JPML has focused on making diverse appointments as a way to get the best results possible. However, her public comments on diversity of counsel also suggest that she is of the view that we should not pick someone to meet a demographic checkbox; rather, it is a factor in considering what they bring to the task at hand. As such, we’ve seen a shift over time, since the JPML seems to be looking for the best judge for a given MDL—and sometimes that is the diverse judge, but other times it is not.”


Who Got the Work


Massachusetts Superior Court Associate Judge James Lang has appointed 13 lawyers to spearhead lawsuits brought against Columbia Gas of Massachusetts and its parent company, NiSource Inc., over dozens of gas explosions in Massachusetts last year. On Monday the judge stayed all the cases for possible settlement and appointed a leadership team that includes John Roddy (Bailey & Glasser), Frank Petosa (Morgan & Morgan) and Elizabeth Graham (Grant & Eisenhofer) as co-lead counsel, and Leo Boyle and Bradley Henry, both of Meehan Boyle, as co-liaison counsel. He also appointed Robert Jenner (Jenner Law), Michael Burg (Burg Simpson), Nathaniel Orenstein (Berman Tabacco) and Hunter Shkolnik (Napoli Shkolnik) to join them on an executive committee, and four additional lawyers to the plaintiffs’ steering committee.

Here's what else you need to know:

Pay to Park: Fiat Chrysler agreed to pay $800 million to settle its legal problems over EcoDiesel vehicles, according to my story. It’s a lot of money, but not as much as the $14.7 billion that Volkswagen paid in 2016 to resolve its emissions scandal. Here’s why, according to Elizabeth Cabraser (Lieff Cabraser), who crafted both deals: Chrysler had far fewer cars that, unlike Volkswagen, could be fixed. Also, Fiat Chrysler didn’t admit liability. Fun fact: Kenneth Feinberg was settlement master.

Wrong Way: A federal judge has disqualified Keller Lenkner from a class action against Uber, according to Law.com’s story. The suit, filed last year, alleged Uber’s classification of its drivers gave the ride-hailing firm a financial advantage over competing transportation companies. U.S. District Judge Edward Chen’s concerns focused on partner Warren Postman, who did appellate work for the U.S. Chamber of Commerce before joining the plaintiffs’ firm. In particular, Chen wrote in a ruling last week, Postman did “extensive” work teaming up with Uber in a suit challenging Seattle’s collective bargaining ordinance.

TV Trouble: Last month, “60 Minutes” aired this episode about the opioid crisis. It didn’t go over well with the companies that have been sued (and who, by the way, just won this court victory in Connecticut). They asked U.S. District Judge Dan Polster, who is overseeing the opioid multidistrict litigation in Cleveland, to allow them to file a sanctions motion against the three lawyers who appeared on the program: Mike Moore (Mike Moore Law Firm), Burton LeBlanc (Baron & Budd) and Ohio Governor Mike DeWine, the state’s former attorney general, according to my story. Last week, he declined to do so. But the judge allowed plaintiffs’ lawyers to pursue a disqualification motion against Carole Rendon (Baker Hostetler), who represents defendant Endo.

Thanks for reading Critical Mass. See you next week!