Critical Mass

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Florida gives rise to its share of class actions and mass tort claims. That’s expected given its size as the third largest state by population and a history of pro-plaintiff laws and court rulings — a tendency GOP legislators and governors have had success in recent years reversing. In class actions, one or a small number of plaintiffs represent the claims of a large group damaged to the same extent. Class actions cover everything from accounting fraud to the length of a foot-long hoagie. In mass torts, cases are brought individually. While the grievances are shared, the damage varies. Think of people harmed to different extents by a drug reaction. The cases are consolidated pre-trial. For some perspective, Florida Trend spoke with defense and plaintiff attorneys around the state who practice in the class action and mass tort arena. Here’s a look at the trends, issues and players influencing the landscape.

• CLASS ACTION TRENDS

Growing defense costs

In 2023, Fortune 1000 companies spent a record $3.9 billion nationally defending class action suits, for another consecutive year such spending was up, according to the 2023 annual survey of in-house counsel conducted by Tampa-based law firm Carlton Fields. Class action defense is the fastest-growing item in corporate legal spending, the survey found. The firm conducts the survey to help companies reduce costs and mitigate risk. Carlton Fields handles up to 70 class actions a year.

Nearly 80% of companies surveyed defended against a labor and employment class action in the previous five years. “If you’re a company, you face the risk of class action — it’s just part of the nature of running a business these days,” says shareholder D. Matthew Allen, who chairs the firm’s national class actions practice and co-directs the annual survey.

Allen says most class actions end with a settlement. Even when the company feels the claim is baseless, settling is the cheaper route. Overall, companies settled 77.1% of cases in 2023 by paying individual plaintiffs and their attorneys rather than making a class-wide settlement. Says Allen, “If there’s risk, and there is for the defendant, you can get an individual settlement for nuisance value at the front end of the case before you invest thousands, if not a million dollars into defending the case. You have to do it as a rational economic actor.” Some 65% of companies changed a business practice as part of their settlements.

• CLASS ACTION TRENDS

ON THE RISE: Suits alleging violations of collection laws

At 5:46 a.m. on July 7, 2022, Bank of America sent a “Payment Due Reminder” email to Miami-Dade County resident Andrea Fonseca. “You recently submitted a request to enroll in a reduced payment program,” it said, “In order to finalize your enrollment, please pay $244.00 by July 17, 2022.”

Thus, Bank of America allegedly ran afoul of the Florida Consumer Collection Practices Act, which prohibits creditors from contacting people to collect a debt between 9 p.m. and 8 a.m.

Fonseca sued in May 2023 in small claims court over the email. A month later, she filed a class action in Miami-Dade Circuit Court on behalf of herself and any others Bank of America emailed.

Florida has seen a spate of class-action lawsuits over violations of the collections law, says D. Matthew Allen, a Carlton Fields shareholder who defends companies against class actions. Allen wasn’t involved in the Bank of America case.

It took three months for the bank, without admitting fault, to settle by agreeing to change its practices and putting $500,000 into a fund to pay people who received emails in the wee hours. Fonseca received $3,500 for her role as lead plaintiff. The bank, separately, paid $150,000 to the two Fort Lauderdale law firms that represented her. Efforts to obtain comment from the law firms and bank were unsuccessful.

ON THE RISE: Employment-related suits

Last year, Publix assistant department managers represented by Morgan & Morgan and Shavitz Law Group filed a collective action against the Lakeland-based grocer alleging they weren’t paid for work they did. The workers complain they were summoned to deal with work issues while on break and had to do work before and after shifts. Employment-related suits made up the largest share of class actions at 43.4% in Carlton Fields’ 2023 survey of more than 300 Fortune 1000 companies. Post-pandemic legal fights over remote and hybrid work rules were partly to blame. Legal actions also frequently were over wage-and-hour issues such as disputes on overtime pay, not paying workers for time spent doing work-required actions such as donning safety gear or misclassifying workers as exempt from overtime pay requirements. Efforts to obtain comment from Publix were unsuccessful.

ON THE RISE: Privacy class actions

“The number of privacy class actions is surging, along with claims related to the Florida Telephone Solicitation Act, which can be a minefield for companies marketing to Floridians,” says Miami attorney Alexandra Bach Lagos of Greenberg Traurig’s products liability and mass torts practice. “We also have seen a rise in claims pursuant to Florida’s Deceptive and Unfair Trade Practices Act, particularly claims for false advertising relating to food and beverage labels” as well as an increase in class actions related to shipping and handling charges charged by retailers. She says many of the solicitation claims come because of automated text messages, but the Legislature’s recent changes to the law should stem that particular litigation tide.

• IN THE REARVIEW:

COVID-19-related class actions are disappearing. Those still alive involve mainly workforce issues, including employment claims related to wages, hybrid work, discrimination issues and unsafe work environments, the Carlton Fields survey shows.

ON THE RISE: Artificial intelligence-related claims

Concern about AI-related class actions is rising, Carlton Fields reports. If AI results in an impact on a protected class of people — such as hiring software that screens out older applicants — it could invite a class action. The federal Equal Employment Opportunity Commission last year titled a hearing about AI the “new civil rights frontier.” Data and privacy issues, trademarks and copyrights also can become causes.

“The plaintiffs’ bar has already started filing lawsuits alleging that AI companies have infringed their copyrights by scraping their copyrighted works off the internet to use for training the AI image-generating systems,” says Orlando attorney Greg Herbert of Greenberg Traurig’s litigation and intellectual property and technology practices. As the use of AI becomes more widespread, he suspects “it will become a prime target for the plaintiffs’ bar — particularly plaintiffs’ copyright lawyers.”

• THE MASS TORT TERRAIN

NATIONAL RANKING: Florida — Top 5 state for multidistrict litigation

In the 1960s, in the pre-internet, pre-email world, a price-fixing scandal in the electrical equipment market spawned lawsuits around the country. U.S. Supreme Court Chief Justice Earl Warren created a committee to coordinate the cases. It went so well the U.S. Congress in 1968 passed a multidistrict litigation law to centralize the process for litigating lots of federal court cases that had a common root so that pre-trial rulings are consistent, judges’ and lawyers’ time is used efficiently and actions such as deposing corporate officials aren’t duplicative.

Cases have involved airline and train accidents, asbestos, marketing and sales tactics and securities fraud. A group of judges, the Judicial Panel on Multidistrict Litigation, chooses which suits are consolidated. Judges assigned by the panel pick the lead attorneys and preside over pre-trial work. Often bellwether trials are held and cases are settled en masse.

Multidistrict litigation has become common: 1,800 dockets representing more than 1.1 million cases have come out of the panel. It’s big business. Mass tort advertising research firm X Ante reports that almost 800,000 TV ads for mass litigation were shown in 2023, costing more than $160 million. In Florida, MDL is handled in Miami — the most prominent case is nationwide litigation over heartburn drug Zantac — and in Pensacola over 3M’s military earplugs.

“Florida’s evolution as the place of business for an increasing number of new companies definitely plays a role in why we are among the top five states for hosting MDLs, behind only California, Illinois and New York, while tied with New Jersey,” says Miami attorney Enjoliqué A. Lett, a Greenberg Traurig shareholder in its products liability and mass torts practice. She says the MDL panel in choosing where to send cases considers availability of hotels, transportation connections around the country, the location of plaintiff, defendants and witnesses, and how interested a judge is in taking on the MDL.

FOCAL POINT: Pensacola — largest mass tort

At one point, 30% of all federal court cases nationwide were over earplugs made by Aearo Technologies, a company acquired by St. Paul-based 3M in 2008. Military service members blamed the plugs for hearing damage. 3M countered the plugs were effective when used properly. Said to be the largest mass tort in history, the suits against 3M nationwide were consolidated under U.S. District Judge M. Casey Rodgers in Pensacola in 2019. One of the co-lead attorneys is Bryan Aylstock of Pensacola’s Aylstock, Witkin, Kreis & Overholtz. Of the first 16 cases to go to trial, 3M lost 10 and was hit with $265 million in damages. In August, without admitting liability, 3M agreed to pay $6 billion to settle all the cases. Aylstock’s co-lead counsel in the case said 240,000 people will be eligible for the settlement.

THE MASS TORT TERRAIN

Panhandle Prominence

In 1961, a young University of Florida-educated lawyer named Fredric Levin began practicing law in his native Pensacola at Levin & Askew, a law firm founded by his brother and one Reubin Askew. Askew went on to be a Florida governor. Fred Levin, for whom the UF law school is named, went on to be a preeminent plaintiff lawyer who won more than 30 jury verdicts of more than $1 million and six of more than $10 million.

In 1982, Mike Papantonio joined the firm, now known as Levin Papantonio Rafferty. Whereas Levin triumphed in individual suits, Papantonio made his and Pensacola’s mark in mass torts. “I just kind of fell into this niche,” Papantonio says.

He’s credited with making mass torts a common practice; he was a lead in the opiate litigation and in the DuPont chemical contamination case and is one of the most successful lawyers of his generation with a long list of honors and appearances in documentaries. He started the Ring of Fire show, which debuted on radio and is now on YouTube. Pensacola’s proximity to Alabama, Georgia and Mississippi makes it a good place to develop and handle mass torts, he says.

He’s also the founder of Mass Torts Made Perfect, a twice-a-year conference in Las Vegas where 2,000 lawyers and paralegals network and exchange strategies on mass torts. From the events have emerged the nation’s biggest pharma cases, including opiate prescription addiction litigation and also environmental litigation such as “forever chemicals” PFAS. Ahead, he sees mass torts building over other environmental issues and human trafficking.

FOCAL POINT: Stuart — national bellwether

On the eve of trial in June in South Carolina, St. Paul-based 3M settled a claim by the city of Stuart in Martin County that PFAS chemicals in 3M firefighting foam had polluted the city water supply. The city wanted $115 million to treat out the chemicals. The trial was to serve as a bellwether for 300 similar lawsuits filed by water systems around the nation over PFAS, called “forever chemicals” because they don’t readily break down in the environment. In all, 4,000 firefighting foam cases against 3M and other companies were consolidated into a multidistrict litigation in federal court in Charleston. One industry group says remediation will cost water system operators $64 billion over 20 years.

3M, without admitting liability, said it would pay $10.3 billion to resolve the PFAS public water supply claims. 3M had previously announced it would get out of PFAS manufacturing by year-end 2025. 3M said PFAS can be made and used safely and are critical in manufacturing many products.

• Miami’s Mass Conference

The University of Miami School of Law sponsors an annual forum — now in its eighth year — that covers “cutting-edge topics on class actions, MDLs, mass tort litigation and more.” In January, the speakers were heavy-hitter lawyers and jurists including U.S. District Judge M. Casey Rodgers, who presides in Pensacola over what’s said to be the nation’s largest mass tort, the 3M military earplugs case. UM, the day before, held a session for lawyers on how to break into the class-action field. The forum was founded with a $1-million donation from local personal injury firms Kozyak Tropin & Throckmorton, Podhurst Orseck and Harke Law. When first announced, the business group American Tort Reform Foundation wasn’t pleased. “Florida Needs New Class Action Forum at Miami Law Like It Needs a Category 5 Hurricane,” read the headline on its report.

Tags: Government/Politics & Law, Feature