Complaint Accuses Depo-Provera Judge of ‘Explicit Preference for Females,’ 10-Hour Closings Cap Key Talc Bankruptcy Hearing

Welcome to Law.com Class Actions: Critical Mass, a weekly briefing for class action and mass tort attorneys.

This week:  A conservative group filed a misconduct complaint against U.S. District Judge M. Casey Rodgers for her order encouraging women to apply for leadership in the Depo-Provera MDL. A Houston judge wrapped up a two-week hearing in Johnson & Johnson’s hotly contested talc bankruptcy. Find out who represents Lens.com in consumer class actions over contact lens pricing.

I’m Amanda Bronstad. Feel free to reach out to me with your input. My email is [email protected]. Follow me on LinkedIn or X: @abronstadlaw.

Here’s my story on the Feb. 27 complaint, filed by Article III Project, which pinpointed Rodgers’ language in a leadership order that “females should be adequately represented within leadership.”

Rodgers was assigned last month to oversee more than 70 lawsuits alleging Depo-Provera, an injectable birth control, was linked to brain tumors. Her leadership order reflects growing focus in the bench and bar about diversifying leadership teams in multidistrict litigation, historically dominated by white and male attorneys.

Paul Grimm (Duke Law School’s Bolch Judicial Institute) and Jeremy Fogel (UC Berkeley Law’s Berkeley Judicial Institute) recently spoke out about defending judges from political attacks. Here’s what they had to say about the complaint against Rodgers:

Grimm: “The group that has filed the complaint, they have their own reasons for doing so, and own objectives they want to achieve. Whether those objectives in their complaint about what the judge did constitutes under the existing canons of judicial ethics a violation is what the committee will decide. But the underlying activity that this judge did is certainly not an outlier for purposes of establishing the criteria employed throughout the MDL community for the last 20 years or more, trying to encourage a broader base of people to seek leadership positions.”

Fogel: “The complaint implies that Judge Rodgers is seeking women for leadership roles without regard to their professional experience and qualifications. That implication is not only is without support in the record but also is profoundly tone-deaf in a case in which the allegedly defective product by definition has direct impact only on women.”

Talc Bankruptcy Judge Asks ‘What the Clients Actually Want’

Lawyers for Johnson & Johnson gave closing arguments on Feb. 28 in a two-week hearing to determine whether to dismiss the talc bankruptcy of its subsidiary, Red River Talc, and confirm a prepackaged $10 billion plan.

The closings, which lasted 10 hours, focused on several arguments but prominently featured aspects of Johnson & Johnson’s July 26 vote among talc claimants for or against the plan. U.S. Bankruptcy Judge Christopher Lopez, who is overseeing the Chapter 11 case in the Southern District of Texas, asked questions about the disclosures to clients, and whether talc claimants were given enough time to consider their options. Complicating matters are nearly 12,000 clients represented by both Andy Birchfield (Beasley Allen), who voted “no” to the plan, and R. Allen Smith (Smith Law Firm), who voted, “Yes.”

Under the plan’s procedures, talc claimants could submit their vote directly, or through their attorney, but lawyers also could vote on their behalf.

D. Theodore “Teddy” Rave (University of Texas School of Law), who published an article this year on mass tort settlements in bankruptcies, told me the voting procedures in the talc case are common in Chapter 11 cases but do not have the same consent that is required in multidistrict litigation. He said:

“The Beasley Allen and Smith Law Firm highlights it. When two firms can say the same group of clients vote opposite ways on the bankruptcy, we need to find out what the clients actually want, and it’s not clear the process is here to get that information.”

Who Got The Work?

James Lee (Boies Schiller) stepped in as national counsel for Lens.com in six class actions alleging the online retailer of contact lenses tacks a processing fee at checkout, raising the total price beyond the advertised amount in violation of numerous state consumer protection laws. Last month, Lee filed a motion before the U.S. Judicial Panel on Multidistrict Litigation to coordinate the cases in Nevada, where Lens.com is based. Plaintiffs have opposed coordination, but, in a Monday reply, Lee wrote, “Lens.com seeks this MDL as a last resort after exhausting all possible avenues to secure plaintiffs’ voluntary consolidation of these cases in Nevada.”

Here’s what else is happening:

Addiction Advances: A federal judge in California issued her final dismissal order, allowing most addiction claims against social media giants such as YouTube and Instagram to go forward. The Feb. 28 order by U.S. District Judge Yvonne Gonzalez Rogers, which addressed personal injury claims of negligence, wrongful death, survival and loss of consortium, sets the stage for bellwether trials next year. Gonzalez Rogers previously allowed claims brought by school districts and state attorneys to go forward, and, for most claims, refused to immunize the social media companies from liability under Section 230 of the Communications Decency Act.

Deflated Tires: A federal judge in Ohio dismissed multidistrict litigation alleging a price-fixing conspiracy among tire manufacturers during the COVID-19 pandemic. U.S. Chief District Judge Sara Lioi found that the automobile dealership and other reseller plaintiffs “failed to adequately plead a conspiracy,” particularly given the volatility of the pandemic on the economy. The consolidated complaint had accused companies such as Bridgestone and Michelin of raising the prices of new replacement tires by more than 20% in 2020.

PFAS Fees: A special master recommended which firms should get more than $1 billion on common benefit fees in the multidistrict litigation over the “forever chemical” PFAS in public drinking water supplies. Most of the fees are tied to two settlements: a deal with 3M totaling as much as $12.5 billion, and a $1.185 billion agreement with DuPont. Last month, the special master allocated additional fees associated with a $750 million settlement with Tyco and a $316.5 million deal with BASF.

Thanks for reading Critical Mass! I’ll be back next week.