Girard Sharp 2022 Year-End Report
2022 marked another year of focused, collaborative effort by our close-knit team, with some notable achievements, several high-stakes cases set for trial in 2023, and a number of interesting new cases. Here’s a rundown on what we achieved, and what we’ll be working on in 2023.
Resolved in 2022
In JUUL Labs, a multidistrict proceeding arising out of the sale of the JUUL vaping device, Dena Sharp serves as co-lead counsel, leading a team of attorneys in San Francisco federal court. The parties announced a global settlement of claims against JUUL and the individual defendants on December 6, 2022. The settlement amounts remain confidential for now. The case against Altria is set for trial in 2023, following certification of a nationwide consumer class under RICO. Stay tuned for further developments—the case is very active and 2023 should prove interesting.
Dena Sharp, Adam Polk, and Nina Gliozzo also completed a partial $29 million settlement in the Pacific Fertility Center litigation, following arbitration proceedings against the medical clinic responsible for storing human reproductive tissue for family planning purposes. In 2021, Dena, Adam, and Nina successfully tried several individual cases to a $15 million jury verdict against the manufacturer of the cryogenic storage tank that failed. We are defending those judgments on appeal and will be seeking compensation for the other 150 households we represent. The Pacific Fertility Center verdicts were widely reported as the first trial judgments ever in a case involving the loss of human eggs and embryos.
Dan Girard, Jordan Elias, and Simon Grille served as lead counsel in the Office of Personnel Management Data Breach Litigation in federal court in Washington, a consolidated multidistrict case under the federal Privacy Act on behalf of government employees following a hack of federal personnel records. Jordan Elias coordinated our work on the appeal after the case was thrown out on a motion to dismiss. After two years of negotiations with DOJ attorneys, we reached a settlement for $63 million, approved in November. The settlement will pay a minimum of $700 and up to $10,000 to claimants who spent money as a result of or to mitigate the risks of identity theft.
Dena Sharp, Scott Grzenczyk, and Tom Watts successfully resolved the Restasis Antitrust Litigation, winning court approval of a $30 million settlement with pharma giant Allergan for end-purchasers of Restasis, a dry-eye medication. The litigation arose out of an alleged scheme to inflate drug prices by delaying the entry of a competing generic. The case was not settled until final pretrial preparation was underway, following an order certifying the plaintiff class and an attempted appeal.
Simon Grille, with help from Adam Polk and co-counsel, secured a $50 million settlement in the Apple MacBook Keyboard Litigation, for purchasers of MacBook laptops fitted with the “butterfly” keyboard. The case was litigated through class certification, expert selection, and summary judgment before settling. Notice will go out in early 2023; final court approval will be decided in March. The settlement will return payments of several hundred dollars to MacBook purchasers who experienced repeat keyboard failures.
Adam Polk, Scott Grzenczyk, and Tom Watts were successful in representing British Airways passengers suing over the airline’s refusal to issue refunds for COVID 19-related cancellations. The case, brought in the Southern District of New York, was aggressively defended for almost a year and a half before settlement negotiations got underway. The court approved a comprehensive settlement for refunds and interest in November 2022.
Also in the Southern District of New York, Dan Girard and Jordan Elias served as members of the Executive Committee in the JPMorgan Precious Metals Spoofing Litigation, a class action for market manipulation in violation of the Commodities Exchange Act. In July 2022, the court approved a $60 million settlement. Claimants will be fully compensated for any losses.
In the CannTrust Securities Litigation, Adam Polk represented investors in California state court against officers, directors and underwriters involved with a Canada-based cannabis operation that got into serious trouble for running unregistered “grows.” Coordinated with litigation in Ontario and New York, the CannTrust case settled for $83 million.
Dan Girard and Tom Watts represented the California State Teachers’ Retirement System in a non-class securities case against Allergan for concealing the company’s exposure based on a wide-ranging generic drug price-fixing and market allocation scheme. Dan and Tom secured a confidential settlement for CalSTRS after more than three years of litigation and several months of mediation.
We began the year by distributing a $54 million recovery in the Woodbridge Investments Litigation, a Central District of California case against a national bank on behalf of retail investors who were victimized by a real estate Ponzi scheme. Serving as lead counsel, Dan Girard, Jordan Elias and Makenna Cox worked with an experienced equity receiver and co-counsel to bring this challenging case to a successful conclusion, receiving court approval in December 2021.
We also distributed $73 million to women abused by a UCLA Medical Center gynecologist. Girard Sharp served as co-lead counsel in a sexual abuse case arising out of the actions of Dr. James Heaps, who was convicted of several felony offenses in a criminal trial this year. Dan Girard and Makenna Cox represented a class of approximately 5,000 former patients. The Central District of California judge approved the settlement in July 2021.
We were unsuccessful in the Humira Antitrust Litigation, a case alleging generic prescription drug suppression based on an ambitious “patent thicket” antitrust theory. The case was dismissed at the pleading stage in 2020, and, despite the best efforts of a committed legal team, the Seventh Circuit Court of Appeals affirmed.
Set for Trial in 2023
In the Maxar Securities Litigation, in Santa Clara County Superior Court, Adam Polk leads our firm’s team, working with Tom Watts and Makenna Cox. We represent a certified class of investors in DigitalGlobe, which was acquired by the space imagery company Maxar. Our clients exchanged their DigitalGlobe shares for shares of Maxar stock in the acquisition. The value of the Maxar shares collapsed when the company admitted after the merger that its balance sheet had overstated the value of its core assets. Trial is set for July 2023.
Other Things We’re Working On
We serve as co-lead counsel in the Xyrem Antitrust Litigation. Another high-stakes generic suppression case, the Xyrem litigation involves a drug prescribed to treat narcolepsy. The cost of Xyrem has increased over 1,400% since 2007, and a typical dose can run $14,000 a month. We filed our motion for class certification in November 2022. Dena Sharp and Scott Grzenczyk lead our experienced team, with strong support from Tom Watts and Jordan Isern.
We also serve as co-counsel in the California Gasoline Spot Market Antitrust Litigation, an action against major gasoline trading companies for using the pretext of a 2015 refinery outage in Torrance, California to manipulate the price of gasoline on the spot market, resulting in overcharges passed on to consumers at the pump. As with any litigation involving the gasoline industry, this is a challenging case—but Dena Sharp, Kyle Quackenbush, and Mikaela Bock are rising to the challenge of preparing the case for trial, with Scott Grzenczyk lending his expertise on class certification issues.
Jordan Elias leads our firm’s work in the Google Digital Advertising Antitrust Litigation, a multidistrict case in the Southern District of New York. Serving as lead counsel for digital advertisers asserting claims based on Google’s alleged monopoly, we are working with some top-notch outside lawyers hired by state attorneys general. The court largely denied a motion to dismiss in August 2022, and discovery is now getting underway. This will be another tough case, but a fight worth having in our view.
Dena Sharp, Simon Grille, and Mikaela Bock will be representing consumers in the Equifax Fair Credit Reporting Act litigation. Equifax is charged with misreporting the credit scores of hundreds of thousands of consumers, in violation of the Fair Credit Reporting Act. Our firm was appointed by a federal judge in Atlanta to serve as co-lead counsel, after oral argument from several competing law firms.
Dan Girard and Makenna Cox are co-lead counsel in the J&J Investment Litigation in federal court in Las Vegas. We are seeking recoveries for the investors in this $491.5 million Ponzi, which was run through an attorney trust account at Wells Fargo. When the FBI arrived at the perpetrator’s home to arrest him, he brandished a weapon, was shot by the FBI, and a standoff ensued. The perpetrator eventually surrendered and admitted to running the Ponzi. We expect the court to decide Wells Fargo’s contested motion to dismiss in 2023.
Scott Grzenczyk continues to lead our firm’s work in a complex case in federal court in Philadelphia on behalf of life insurance purchasers. The Lincoln National Cost of Insurance Rate Increase Litigation arises out of alleged “shock re-pricing” increases in monthly premiums, designed to induce policy surrenders, extricating the insurance company from aggressive pricing decisions it made years earlier to increase sales. Although the court denied our motion for class certification without prejudice, we are preparing a renewed motion and expect to be successful this time around.
We continue to serve as active members of the Executive Committee for end-payers in the Generic Pharmaceuticals Antitrust Litigation in Philadelphia federal court being prosecuted in parallel with a series of DOJ criminal prosecutions. The Generic Pharmaceuticals litigation involves allegations of wide-ranging price fixing and market allocation, and players across the generic drug manufacturing industry.
In the Natera Prenatal Testing Litigation, we represent expectant parents on claims against Natera, Inc. for misrepresenting the accuracy of its genetic testing, leading to false positives for chromosomal abnormalities and potentially catastrophic family planning decisions. Dena Sharp leads our team, with support from Adam Polk and Nina Gliozzo. We opposed a motion to dismiss the complaint, which is pending.
In the In re Philips Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Litigation in Pittsburgh, Dena Sharp and Adam Polk lead our firm’s team, serving on the Law and Briefing and the Science and Experts committees, representing purchasers of Philips Respironics respiratory devices. The CPAPs and other breathing devices were recalled because of their potential health risks due to the degradation of polyester-based polyurethane foam in the breathing apparatus. This sprawling litigation is just getting off the ground; plaintiffs in the economic loss, medical monitoring, and personal injury tracks recently filed their operative complaints.
Adam Polk leads our work in the Allergan Biocell Textured Breast Implant Litigation, a multidistrict case based in New Jersey, where we serve on the Executive Committee. The firm represents women who were fitted with breast implants prone to rupture and which have been associated with increased cancer risks. Discovery is underway, and plaintiffs are working to prepare their motion for class certification.
Dan Girard, Jordan Elias, and Sean Greene represent purchasers of defaulted bonds in the GWG Holdings Securities Litigation, in the Northern District of Texas. The Wall Street Journal described how “bond salesmen working out of strip malls” sold the investments to Main Street investors, and how the top promoter used bondholder money to complete his acquisition of a $60 million ranch. The case has been stayed while the company’s bankruptcy plays out but is expected to ramp up in early 2023.
We also serve as lead counsel in several cases arising out of data breaches where sensitive personal information was hacked and stolen, jeopardizing citizens’ medical privacy and exposing them to identity theft. Adam Polk serves as lead counsel in the Planned Parenthood of Los Angeles Data Breach case, involving the release of highly sensitive personal health information of patients. Simon Grille is leading a data breach case in Alameda County Superior Court for members of the UC community statewide who were victimized by a data breach attributable to vulnerabilities in Accellion software. We are litigating several other data breach cases as well, with Simon and Adam developing considerable expertise in the field. Kim Macey has been providing associate support.
We will be representing plaintiffs in a series of cases against media companies and other online service providers under the federal Video Privacy Protection Act for surreptitiously monitoring and reporting users’ viewing habits to Facebook’s parent Meta. These actions are still in their early stages.
Service to the Courts and the Legal Profession
We consider it a privilege to serve our clients and recognize our justice system depends on the integrity of our court system and the hard work of judges and court personnel. We consider it our honor and obligation in turn to contribute to our court system and the legal profession in every way we can.
Dan continues to serve as a member of the Council of the American Law Institute, attending the Council’s Fall Meeting in New York. He serves as Chair of the Audit Committee, and on the Membership and Development Committees. He is also an Advisor for the Restatement of Torts, Third, Remedies project. Dan previously served for four terms on US Judicial Conference committees.
Dena served as co-chair of the Lawyer Representative Committee supporting the Northern District of California Judicial Conference and organized a successful post-pandemic conference at Silverado in Napa Valley. She was then asked to chair the Northern District’s Magistrate Judge Selection Panel and completed that work a few months later. Dena is also the incoming Board Chair of the Impact Fund, an influential legal non-profit supporting public interest lawyers, and sits on the board of advisors for the Center for Litigation and the Courts at UC Hastings.
In addition to leading our new business evaluation process, Adam is taking on increasing responsibilities in the American Bar Association, having completed his service as Chair of the ABA’s Litigation Section Class Action and Derivative Suits Committee. He has been named Chair of the ABA’s National Institute on Class Actions, hosting a successful conference in November 2022. He also continues to serve in ABA leadership as a member of the Virtual Programming Board, and has published articles in ABA publications on a range of topics relating to class actions. In addition, Adam was recently elected to leadership of the American Association of Justice’s Class Action Litigation Section, where he serves as the Online Content Editor and is a frequent contributor of written content for the section.
Jordan Elias wrote a law review article entitled The Multistate Problem in Consumer Class Actions and Three Solutions. It was accepted for publication by the Harvard Law & Policy Review, the national journal of the American Constitution Society, and will be published in spring 2023. Jordan continues to be responsible for the Supreme Court chapter in the ABA’s Survey of Federal Class Action Law. In 2022, he also published a book chapter in The Class Action Fairness Act: Law and Strategy, another ABA publication.
Scott Grzenczyk serves on the leadership of the ABA’s Antitrust Section as an editor of the yearly Antitrust Law Developments publication. He frequently presents at panels and conferences on issues closely tied to class certification and working with economic experts.
We are also serving as pro bono counsel in a confidential life sciences matter. The firm’s efforts are led by Kyle Quackenbush, with assistance from Mikaela Bock and Kim Macey and supervision by Scott Grzenczyk.
Awards and Recognition
We are proud to have been acknowledged for our efforts this year by several publications. Girard Sharp continues to be distinguished as a Tier 1 law firm for plaintiffs’ mass tort and class action litigation by U.S. News & World Report and has been included on its list of “Best Law Firms” every year since 2013. Also in 2022, Girard Sharp was recognized by Law360 as the Practice Group of the Year in Product Liability Litigation, and our Pharmaceutical Litigation Group was recognized by the National Law Journal. Individual attorneys have also received acclaim for their work this year: Nine of our attorneys have been recognized as Northern California Super Lawyers and Rising Stars. Partners Dan Girard, Dena Sharp, and Jordan Elias were once again named to the list of Best Lawyers in America and Trevor Tan, Simon Grille, and Scott Grzenczyk were recognized as “Ones to Watch.” Dan Girard and Dena Sharp were both recognized as among the “Top 100 Super Lawyers” in Northern California, and Best Lawyers designated Dena Sharp as the 2023 “Lawyer of the Year” in San Francisco for class action litigation.