The federal district court judge overseeing the Juul Labs Inc. multidistrict litigation recently granted approval for a class action settlement that would include up to $150 million in attorneys’ fees. However, while doing so, the judge also noted his concerns over the lack of diversity among the plaintiffs’ lawyers serving on the case
During a late December 2023 hearing regarding approval of the Juul class action settlement, U.S. District Judge William Orrick of the Northern District of California said:
It is stark to me that here you had 62 great firms, and apparently almost no Blacks or Latinos who are either lawyers there, or that the firms put up. There are excellent lawyers throughout this country who are not being involved in these MDLs, and when it has such a huge percentage of the caseload, you have to do better. The courts have to do better.
Judge Orrick has previously advocated for increasing diversity among lawyers in plaintiffs’ leadership teams in MDLs. He ordered plaintiffs’ counsel in the Juul MDL to provide a confidential demographic report detailing the plaintiffs’ lawyers involved in the case and the tasks they worked on, such as authoring briefs or chairing depositions, as well as addressing multiple factors such as race, sexual orientation and years in practice. The diversity reports were reviewed in tandem with the quarterly time and expense reports on an ongoing basis and were designed to help readers understand the data provided on a simple, visual level.
Judge Orrick appointed 21 lawyers to leadership positions in the Juul MDL, ten of whom were women. At the December hearing, he questioned why, according to the demographic report, so few of the appointed female lawyers handled depositions in the litigation.
Sarah London, co-lead plaintiffs’ counsel, admitted that the firms involved in the litigation had demonstrated shortcomings when it came to diversity, although she noted female attorneys handled some of the most important depositions. She explained that:
In this kind of case, with so much to do and so little time, we relied on a lot of hand raising: Who could do it, who could step in, who had done something like this before, who had resources at their fingertips for depositions. Implicit bias runs rampant, even within our ranks, and it’s efforts like this that help shine a light on new opportunities and disparities. I know we can do better, and I’m hopeful that some of the younger folks, women, who got opportunities in this case, will then get to go to the next case and say, “Yes, I’ll put my hand up, I’ve done it before.”
Why Diversity Among Plaintiffs’ Counsel Matters
Recent efforts at increasing diversity in the legal profession have attempted to provide opportunities to female lawyers and lawyers of color to better reflect the diversity among law firms’ clients. As lawyers in the Juul MDL noted, giving younger, more diverse attorneys the opportunity to handle key tasks in complex litigation will give them the experience and confidence to volunteer to handle future cases, which will hopefully put them in the running to secure prestigious lead counsel positions in the future that today seem to go to a relatively small group of lawyers.
There are many benefits to the plaintiffs’ bar ensuring that the lawyers prosecuting mass torts, class actions, and other complex litigation are diverse and reflect the diversity of the clients in those litigations.
For one, having a diverse legal team and staff enables law firms to better connect with clients who come from diverse ethnic and socioeconomic backgrounds. Clients may feel more comfortable opening up to lawyers and staff who have similar backgrounds to them, and will thus be more likely to retain those law firms who employ diverse attorneys and staff.
Diversity also enables legal teams to see cases from more perspectives. A case may have aspects or arguments that some lawyers see—but most others miss—because of their unique backgrounds and life experiences. Getting as many viewpoints on a case as possible can help firms anticipate opposing counsel’s strategies and support their clients’ claims with unique, innovative arguments.
Also, diverse viewpoints help law firms make better business decisions. Having diverse attorneys and staff at law firms, especially in leadership positions, allows firms to communicate better with their attorneys and staff from varied backgrounds, as well as with current or prospective clients of various origins. Diverse backgrounds also help attorneys identify potential defendants and develop legal claims, including those which could be the basis for a mass tort or class action, that may be missed by other lawyers because the claims concern products that may be predominantly used by minorities.
It is unclear whether plaintiffs’ firms involved in MDLs across the U.S. will heed Judge Orrick’s admonishment and give their diverse attorneys (and staff) more active roles in those MDLs. However, the one thing that is clear is that until attorneys from different backgrounds are more regularly running the show in MDLs, Judge Orrick will not be the last federal judge to raise this issue with the lawyers before them.
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