Good morning. A new study from a pair of academics is revealing deep dissatisfaction by plaintiffs about the federal mass torts process and their own lawyers. Roberta Kaplan has parted with Time's Out over her link to the sexual harassment scandal surrounding New York Governor Andrew Cuomo. And a federal judge is trying to put a halt to "enormous" paydays for lawyers in the $26 billion opioid settlement. It may be August but the news just won’t stop, so let's get going!
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Federal mass tort plaintiffs displeased with lawyers, system: survey
Source: "Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd," by Elizabeth Chamblee Burch
A new study of plaintiffs whose personal injury lawsuits were consolidated into federal multidistrict litigation found that nearly two-thirds said they were somewhat or extremely dissatisfied with their attorneys -- and fewer than 2% of the respondents said the litigation had accomplished what they'd hoped.
Columnist Alison Frankel reports on the stunning results of the survey, which the researchers call the first ever to survey MDL plaintiffs about their cases and the system in general. The lead researcher, University of Georgia Law Professor Elizabeth Chamblee Burch, said what she heard from plaintiffs "broke my heart."
The survey covered 217 plaintiffs from MDLs that involved products targeting women, with the vast majority of respondents coming from pelvic mesh litigation.
The researchers acknowledge the women who chose to participate in the survey may have had more extreme views than those who declined. But they were demographically diverse and represented by attorneys from 145 law firms, and the researchers said the mesh litigation is similar enough to other MDLs that the study's lessons should be broadly applicable.
"Our findings suggest that the statutory ideal of individual representation upon which MDL was built is now just a convenient fiction," the researchers wrote. "Law firms' Costco-type warehousing seems to leave clients feeling deeply dissatisfied with nearly all aspects of their attorney-client relationship." Read more.
Industry buzz
- Prominent New York attorney Roberta Kaplan resigned from her position as the chair of the board of Time's Up, the group founded in the wake of the Harvey Weinstein scandal to help women who suffer sexual harassment, following revelations about how the Kaplan Hecker & Fink partner was involved in efforts to push back against a woman's claims against New York Governor Andrew Cuomo. (Reuters)
- That's not the only fallout from the Cuomo scandal. Sidley Austin is being tapped by Human Rights Campaign to conduct an internal investigation over allegations that the LGBTQ advocacy group's president, Alphonso David, played a role in responding to sexual misconduct claims against the governor. David was previously legal counsel to Cuomo. (Reuters)
- Despite last year's protests against systemic racism and renewed calls for diversity in the legal profession, the number of general counsel of color at Fortune 1000 companies actually declined in 2020 to 115, down from 117 a year earlier, according to a survey by the Minority Corporate Counsel Association. (Reuters)
- London-based Allen & Overy has become the latest out-of-state firm to launch outposts in California's Bay Area by opening new offices in Silicon Valley and San Francisco with eight partners from White & Case. They include Shamita Etienne-Cummings and Bijal Vakil, who will serve as the global co-heads of Allen & Overy's global technology practice. (Reuters)
- The employment law firm Fisher Phillips wanted to see to what extent companies are mandating or leaning toward requiring their workers to get COVID-19 vaccines. In a new survey, the firm found that 15% of respondents are now requiring vaccines or are considering doing so, up from just 4% in May. (Reuters)
That's the cap on how much plaintiffs' lawyers pursuing opioid lawsuits will be allowed by U.S. District Judge Dan Polster in Cleveland, Ohio, to earn as contingency fees if the cities and counties they represent participate in the landmark $26 billion settlement with the three largest U.S. drug distributors and Johnson & Johnson. About $2.3 billion of the settlement with distributors McKesson, Cardinal Health and AmerisourceBergen and drugmaker J&J had been set aside to pay lawyers' fees and expenses. But Polster in a 16-page ruling said the lawyers could opt not to apply to those funds and instead enforce their contingency fee agreements with their clients. While the judge said fee caps are "unpopular" with the plaintiffs' bar, without one the lawyers could earn "enormous" sums, siphoning away money that was intended for communities nationally to help address the drug crisis. See why.
Coming up today
- Twitter will ask the 9th Circuit in Seattle to overturn a judge's decision that prevents the company from revealing surveillance requests it received from the U.S. government. The social media company sued the DOJ in 2014 so it could disclose the requests, as part of its "Draft Transparency Report." Its lawyers, including Lee Rubin of Mayer Brown, argue that not allowing Twitter to reveal the details violates its free speech rights. DOJ attorney Lewis Yelin will argue for the government.
- Jury selection is underway in R. Kelly's sex abuse trial in Brooklyn. Kelly, who is represented by attorneys Thomas Farinella and Nicole Blank Becker, appeared in court on Monday before U.S. District Judge Ann Donnelly as attorneys questioned prospective jurors for his trial on a nine-count indictment that alleges he used a web of managers and employees to recruit women for him to abuse. Jury selection is likely to wrap in the next couple days. Learn more.
- Thomas Spota, who long served as the top prosecutor in New York's Suffolk County in Long Island, is slated to be sentenced alongside his former chief of investigations after they were convicted on federal charges that they tried to thwart an FBI investigation into the beating of a handcuffed inmate by a police chief. U.S. District Judge Joan Azrack in Central Islip in a ruling last week determined that the former district attorney and Christopher McPartland, his chief of investigations, each face 57 to 71 months in prison under federal sentencing guidelines. Alan Vinegra of Covington & Burling and Larry Krantz of Krantz & Berman are defending Spota and McPartland, respectively, and say a non-custodial sentence is appropriate.
- U.S. District Judge Rodney Gilstrap in Marshall, Texas, will preside over the start of a new trial to determine the proper amount of damages Apple owes Optis Wireless Technology LLC. The company was awarded over $500 million after a jury found Apple infringed its wireless standard-essential patents. Gilstrap later ordered a new damages trial because the award may not have been in line with Optis' responsibility to license the patents on fair, reasonable and non-discriminatory terms. Mark Selwyn of WilmerHale is defending Apple and will face Jason Sheasby and Annita Zhong of Irell & Manella and Samuel Baxter of McKool Smith.
- U.S. District Judge Indira Talwani in Boston will hold a pretrial conference in the case of four former university athletics officials and coaches charged in connection with the U.S. college admissions scandal. The defendants include Gordon Ernst, Georgetown University's former head tennis coach; Donna Heinel, formerly the University of Southern California's senior associate athletic director; former Wake Forest University women's volleyball coach William Ferguson; and ex-USC water polo coach Jovan Vavic. Prosecutors say they all participated in bribery schemes aimed at helping wealthy parents secure spots for their children at their schools as fake athletic recruits. They deny wrongdoing and are scheduled to go on trial in November.
- The 11th Circuit will hear oral arguments in a copyright dispute between Yellow Pages Photos Inc and YP LLC, which does business as "The Real Yellow Pages." YPPI, which owns copyrights in a database of stock images used for telephone directory ads, is appealing a judge's decision finding that YP had licenses to use the photos from yellow-pages publishers, which had in turn licensed YPPI's photos. Richard Fee of Fee & Jeffries and Eric Leon of Latham & Watkins will argue for YP and YPPI, respectively.
"Given how slow we have been in determining how regulated entities can interact with crypto, market participants may understandably be surprised to see us to come onto the scene now with our enforcement guns blazing."
SEC Commissioner Hester Peirce, known by virtual currency enthusiasts as the "crypto mom" for her supportive stance on the asset class, in a statement criticizing the securities regulator's $10.4 million settlement with trading platform operator Poloniex resolving allegations it operated an unregistered online digital asset exchange. Poloniex, represented by Matthew Lindenbaum of Nelson Mullins, did not admit wrongdoing as part of the settlement, which Peirce said "doubles down on the commission's enforcement-centric approach to crypto." (Reuters)
In the courts
- A woman who says she was trafficked for sex by now-deceased sex offender Jeffrey Epstein is suing Britain's Prince Andrew in Manhattan federal court over claims he abused her when she was under 18 years old. Virginia Giuffre, who is represented by Boies Schiller Flexner founder David Boies, says Prince Andrew forced her to have sex multiple times, including at properties owned by Epstein, according to the lawsuit. Spokespeople for Prince Andrew did not immediately respond to requests for comment. The prince has previously said he does not remember Giuffre and categorically denied her claim of sexual abuse. (Reuters)
- Bayer failed to convince a California appeals court to overturn an $86.7 million award won by a couple who alleged their cancers were caused by its weedkiller Roundup, marking the third straight appeal that the company has lost challenging verdicts in litigation over the product. The jury originally awarded Alberta and Alva Pilliod more than $2 billion, but a trial judge reduced the award. Bayer, represented by David Axelrad of Horvitz & Levy, said it disagreed with the verdict and was considering its options. Michael Miller of The Miller Firm argued for the plaintiffs. (Reuters)
- Amazon.com Inc plans to begin compensating customers who suffer injuries and property damage as a result of defective goods sold by third-party sellers on its online marketplace, in a new policy that could reduce litigation. The company has faced multiple lawsuits by customers seeking to hold it responsible for when merchants sell bad products on Amazon. While the company has defeated many such challenges, a state appellate court in California last year said it could be held liable. (Reuters)
- Multimillionaire Robert Durst testified in his own defense in Los Angeles Superior Court as he faces charges he murdered his friend Susan Berman, denying he killed her or knew who did under questioning from his own attorney, solo practitioner Dick DeGuerin. Durst was arrested a day before the airing of an episode in a 2015 HBO documentary series in which he appeared to confess to the killing. (Reuters)
- The trial over Purdue Pharma's proposed settlement resolving claims that it helped fuel the opioid epidemic will last up to 11 days, U.S. Bankruptcy Judge Robert Drain in White Plains, New York, ruled. Set to begin Thursday, the proceedings will determine whether the OxyContin maker can bring its nearly two-year-long Chapter 11 case to a close. Drain said that was the most time he has ever reserved for a trial and warned that he will "cut people off if they are wasting time." (Reuters)
- The 3rd Circuit concluded that former New Jersey Attorney General Gurbir Grewal's directive limiting local law enforcement's cooperation with federal immigration authorities is not preempted by federal law, tossing out a challenge by two counties. Grewal, a Democrat who adopted the policy during the Trump era, resigned last month to become director of enforcement at the SEC. (Reuters)
- The federal government has agreed to compensate a scientist who filed a whistleblower complaint alleging the Trump administration botched its early response to the coronavirus pandemic. The settlement with Dr. Rick Bright, formerly of the U.S. Department of Health and Human Services, was confirmed by his lawyer, Debra Katz of Katz, Marshall & Banks, who said he has "been compensated to the fullest extent allowed by the law." (Reuters)
Industry moves
- Data privacy and security lawyer Christine Lyon has joined Freshfields' recently-opened office in Silicon Valley as a partner from Morrison & Foerster. (Reuters)
- Richard Smith, white-collar defense attorney whose past work has included representing Brazilian engineering group Odebrecht in a massive bribery scandal, has left Quinn Emanuel to join Linklaters as a partner in D.C. Before entering private practice, he spent 15 years working as a federal prosecutor and as a top official in the DOJ. (Linklaters)
- Litigator Jeffrey Hammer, who left Boies Schiller Flexner last year to co-lead his own firm, Caldwell Hammer, has joined King & Spalding as a partner in Los Angeles. The move will allow him to reunite with a 13-partner group that King & Spalding recruited from Boies last year. (King & Spalding)
- Finance, bankruptcy and insolvency lawyer Scott Olson has joined Bryan Cave Leighton Paisner as a partner in San Francisco from Vedder Price, where he led its West Coast insolvency, bankruptcy and corporate reorganization group. (Bryan Cave)
- Jeffrey Koppele, who advises on tax issues in corporate and M&A matters, has joined Squire Patton Boggs as a partner in New York from Ashhurst. (Squire)
- Patent litigator Benjamin Stern has joined Nutter as a partner in Boston from Verrill Dana. (Nutter)
- A five-lawyer intellectual property team led by Martin Bruehs has left Dentons to join Sheppard, Mullin, Richter & Hampton in D.C. Bruehs, who led Dentons' chemical patent practice, will serve in the same capacity for Sheppard Mullin on the East Coast. Also making the move from Dentons are special counsel Rajesh C. Noronha and senior associates James M. Turner and Ying-Hua (Betty) Sun. In addition, Gary Mangels joins as special counsel, having previously practiced with Bruehs and his group at Dentons prior to moving in-house at Johnson Matthey as senior patent counsel. (Sheppard Mullin)
Columnist spotlight: Words of wisdom from legal legend Sandor Frankel
In his new memoir "The Accidental Philanthropist," Sandor Frankel spins tales of hapless clients and improbable claims; knavish opposing counsel and hard-earned wins, offering often hilarious, sometimes poignant and always insightful observations drawn from more than 50 years of legal practice. Known as the go-to lawyer for "Queen of Mean" hotel billionaire Leona Helmsley, Frankel since her death in 2007 has been a steward of her $5.4 billion fortune, which he and his co-trustees have been charged with giving away "to improve lives" around the world. "When you control billions of dollars, you become -- I assure you -- very popular," Frankel wrote. See a dozen of Jenna Greene's favorite takeaways from the book.
Lawyer speak: ESG risks and opportunities in global supply chain
With attention continuing to mount as to how corporations can address environmental, social and governance issues, companies are increasingly being encouraged not just to consider ESG matters within their own enterprise but also among those within their supply chain. James Whitaker and Brad Peterson of Mayer Brown in a new article consider ESG-related risks and opportunities in the context of global supply chains. Read more.
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