Case 3:19-md-02913-WHO Document 4216 Filed 04/23/24 Page 1 of 7
`
`Lauren S. Wulfe (SBN 287592)
`ARNOLD & PORTER KAYE SCHOLER LLP
`777 South Figueroa Street, Forty-Fourth Floor
`Los Angeles, California 90017
`Telephone: 213-243-4000
`Facsimile: 213-243-4199
`Lauren.Wulfe@arnoldporter.com
`
`John C. Massaro (admitted pro hac vice)
`Daphne O’Connor (admitted pro hac vice)
`Jason A. Ross (admitted pro hac vice)
`David E. Kouba (admitted pro hac vice)
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Ave, NW
`Washington, DC 20001
`Telephone: 202-942-5000
`Facsimile: 202-942-5999
`John.Massaro@arnoldporter.com
`Daphne.OConnor@arnoldporter.com
`Jason.Ross@arnoldporter.com
`David.Kouba@arnoldporter.com
`
`Attorneys for Defendants Altria Group, Inc.,
`Philip Morris USA Inc., Altria Client Services LLC,
`Altria Group Distribution Company, and
`Altria Enterprises LLC
`
`Paul W. Rodney (admitted pro hac vice)
`ARNOLD & PORTER KAYE SCHOLER LLP
`1144 15th Street, Suite 3100
`Denver, CO 80202
`Telephone: 303-863-1000
`Facsimile: 303-832-0428
`Paul.Rodney@arnoldporter.com
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`Case No.:19-MD-02913-WHO
`
`ALTRIA’S MOTION TO DISMISS WITH
`PREJUDICE NON-COMMUNICATING
`PLAINTIFFS’ CLAIMS
`
`Hon. William H. Orrick
`
`Date: May 29. 2024
`Time:
`2:00 pm
`
`
`
`
`IN RE: JUUL LABS, INC., MARKETING,
`SALES PRACTICES, AND PRODUCTS
`LIABILITY LITIGATION
`
`
`This Document Relates to:
`
`All Plaintiffs Identified in Exhibit A
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:19-md-02913-WHO Document 4216 Filed 04/23/24 Page 2 of 7
`
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE
`NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`Pursuant to Case Management Order (“CMO”) No. 18, Altria Group, Inc., Philip Morris USA
`Inc., Altria Client Services LLC, Altria Group Distribution Company, and Altria Enterprises LLC
`(“Altria”) moves the Court for an Order dismissing the Plaintiffs listed on Exhibit A with prejudice
`for being “Non-Communicating Plaintiffs.” This motion is supported by the declarations of the
`Personal Injury Settlement Administrator, BrownGreer, and Altria’s counsel, David Kouba.
`Plaintiffs’ Leadership does not object to the Court dismissing with prejudice the claims brought by
`the Non-Communicating Plaintiffs included on Exhibit A to this Motion. Moreover, the Court
`previously granted the same relief sought in this motion in orders granting JUUL Labs, Inc.’s (“JLI”)
`motions to dismiss non-communicating plaintiffs after the settlement between JLI and Plaintiffs. See
`D.E. 4074, 4147. 1
`A. The Personal Injury Settlement Agreement
`On July 26, 2023, Altria and Plaintiffs’ Leadership (the “Parties”) entered into the Personal
`Injury Settlement Agreement (the “Settlement Agreement”). Pursuant to the Settlement Agreement,
`“‘Eligible Plaintiff’ . . . means any Person capable of meeting the definition of Personal Injury
`Plaintiff.” Settlement Agreement ¶ 1.14. “‘Personal Injury Plaintiff’ means all individuals who
`personally, on behalf of another individual, or through an individual acting on their behalf (i) have
`filed or tolled a tort claim or cause of action against any Released Party for personal injury as of the
`date of this Settlement Agreement, whether or not the claim or cause of action has been consolidated
`into MDL No. 2913 or JCCP No. 5052; or (ii) are represented by counsel to pursue a tort claim or
`cause of action against any Released Party for personal injury that has accrued as of the date of this
`Settlement Agreement, but which claim or cause of action has not yet been filed but is filed within
`five (5) Business Days of the Execution Date. . ..” Id. ¶ 1.32. The Settlement Agreement defines
`“Non-Communicating Plaintiff” as “an Eligible Plaintiff whose attorney certifies that the Eligible
`
`
`1 JLI filed two motions to dismiss non-communicating plaintiffs with prejudice. The first motion
`included a list of 193 Non-Communicating Plaintiffs (D.E. 4061) and the second included 3
`additional plaintiffs who were later identified as Non-Communicating Plaintiffs (D.E. 4140).
`
`
`
`- 1 -
`19-md-02913-WHO
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`

`

`Case 3:19-md-02913-WHO Document 4216 Filed 04/23/24 Page 3 of 7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Plaintiff cannot be located or fails to communicate or respond to their offer through the Settlement
`Program.” See id. ¶ 1.27.
`The Settlement Agreement provides that any plaintiff designated by their counsel as a Non-
`Communicating Plaintiffs by January 19, 2024 will be subject to the procedures outlined in the
`Implementation Order entered in the MDL Court, including dismissal with prejudice. See Settlement
`Agreement ¶ 9.3 (“Any Non-Communicating Plaintiff by January 19, 2024, will be subject to the
`procedures outlined in the Implementation Order entered in the MDL Court and the JCCP Court,
`including dismissal of their claims with prejudice.”).
`B. The Court’s Settlement Implementation Order (CMO 18)
`The Settlement Agreement was implemented by this Court through CMO No. 18. See, e.g.,
`D.E. 4111 (“CMO 18”). CMO No. 18 requires plaintiffs’ counsel to submit Counsel Certification
`Forms “identifying all of the personal injury claimants, government entities, or tribal entities that they
`represent.” Id. at Section IV. These “Eligible Plaintiffs” are required to complete certain tasks in order
`to complete the settlement process, including submission of a completed and signed Plaintiff Fact
`Sheet. Id. at Section V. CMO No. 18 provides the process by which Eligible Plaintiffs2 accept or opt-
`out of the Settlement Agreement. CMO No. 18 also provides processes by which a non-compliant
`plaintiff’s claims are dismissed. See, e.g., CMO 18 at Section V.B (Motion to Dismiss with Prejudice).
`Plaintiffs’ counsel also had obligations and requirements under the Court’s Settlement
`Implementation Order. For example, the Court ordered plaintiffs’ counsel to “send [an] Informed
`Consent Letter to their respective clients to obtain informed consent to resolve their clients’ claims
`through the relevant Settlement Program.” Id. at Section VI. The final step in a settling plaintiffs’
`CMO No. 18 submission obligations was to submit the “Settlement Program Eligible Plaintiff
`
`
`2 CMO No. 18 defines an eligible personal injury plaintiff as: “All individuals 1) who have filed or
`tolled any claim based upon, relating to, or arising out of an alleged personal injury tort claim or cause
`of action against Altria as of the date of the Personal Injury Settlement Agreement, whether or not
`those claim(s) or causes of action have been consolidated into MDL No. 2913 or JCCP No. 5052; or
`2) are represented by plaintiffs’ counsel to pursue a tort claim or cause of action against Altria for
`personal injury that has accrued as of the date of the Personal Injury Settlement Agreement but which
`claim or cause of action has not yet been filed but will be filed within five days of execution of the
`Personal Injury Settlement Agreement and who will provide completed and signed fact sheets within
`forty-five days of execution of the Personal Injury Settlement Agreement.” CMO No. 18 at
`Section IV.
`
`
`
`- 2 -
`19-md-02913-WHO
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`

`

`Case 3:19-md-02913-WHO Document 4216 Filed 04/23/24 Page 4 of 7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Participation Form, including Release and Confidentiality Form,” which was due on January 2, 2024.
`Id. at Section VII.
`CMO No. 18 also required plaintiffs’ counsel to “provide Certification for Personal Injury
`Opt-Outs, and produce a list of all Eligible Plaintiffs [to the Personal Injury Settlement Administrator
`(“BrownGreer”)] who failed to respond to their settlement offer (“Non-Communicating Plaintiffs”)”
`no later than January 2, 2024. Id. And CMO No. 16 provided that, on January 19, 2024, BrownGreer
`would provide “Plaintiffs’ Leadership and Altria a list of all Personal Injury Opt-Outs and Non-
`Communicating Plaintiffs.” Id.
`C. Implementation of CMO 18
`On January 19, 2024 BrownGreer provided the Parties with a list of Non-Communicating
`Plaintiffs. BrownGreer provided updated lists on January 24, 2024, February 2, 2024, February 9,
`2024, February 16, 2024, February 23, 2024, March 1, 2024, March 15, 2024, March 29, 2024, April
`1, 2024, April 16, 2024 and April 19, 2024. Declaration of Morgan Meador (“Meador Dec”) ¶ 5.
`BrownGreer has certified that plaintiffs’ counsel notified it that 231 MDL plaintiffs with filed
`cases are Non-Communicating Plaintiffs under the Settlement Agreement and CMO No. 18. Meador
`Dec. ¶ 7; Declaration of David Kouba (“Kouba Dec.”) ¶ 16. This motion only addresses 193 of these
`231 Non-Communicating Plaintiffs, who are identified in Exhibit A, attached hereto. The remaining
`39 plaintiffs already had their claims dismissed or did not file claims that were included in the MDL.
`Kouba Dec. ¶ 17.
`D. Relief
`Altria respectfully requests that the Court dismiss with prejudice the claims of 193 Non-
`Communicating Plaintiffs in the MDL action identified in Exhibit A, who have failed to communicate
`with their counsel despite receiving notices, documents, and filings ordered by this Court. These
`plaintiffs were included on counsel’s CMO No. 18 certifications of eligible plaintiffs, received notice
`of the Settlement Agreement and CMO No. 18 as ordered by the Court, and received Informed
`Consent Letters from their counsel. These plaintiffs, however, have failed to submit documents
`required to accept or opt-out from the settlement and repeatedly failed to communicate with their
`counsel regarding the settlement.
`
`
`
`- 3 -
`19-md-02913-WHO
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:19-md-02913-WHO Document 4216 Filed 04/23/24 Page 5 of 7
`
`Plaintiffs’ Leadership does not object to dismissing the claims of these 193 Non-
`Communicating Plaintiffs with prejudice. And dismissing the claims of the Non-Communicating
`Plaintiffs with prejudice is appropriate under the Settlement Agreement and CMO No. 18 and will
`further the purposes behind the Settlement Agreement and this Court’s implementation thereof. See,
`e.g., In re Diet Drugs Products Liability Litigation, 2009 WL 3444763 at *2 (E.D. Pa. Oct. 23, 2009)
`(upholding dismissal with prejudice of non-responsive plaintiff’s claim where the Settlement
`Agreement and corresponding Implementation Order explicitly provided for such action in the
`absence of excusable neglect); see also In re Deepwater Horizon, 988 F.3d 192 (5th Cir. 2021)
`(same). The parties—with the Court’s approval—carefully crafted CMO No. 18 to afford a process
`for plaintiffs to accept or opt-out from the settlement and to dismiss with prejudice plaintiffs who fail
`to participate in this process in a timely manner.
`Dismissal here will remove from the settlement population plaintiffs who have failed over a
`period of months to communicate with their own counsel. It will bring finality for the parties to this
`settlement to claims that plaintiffs have clearly evinced a desire not to pursue. Absent dismissals with
`prejudice, these Non-Communicating Plaintiffs remain able to resurrect their claims or actions against
`Altria in the future, undermining a key purpose behind the settlement.
`This Court previously granted similar motions filed by JLI. See D.E. 4074, 4147. In these
`Orders, the Court dismissed with prejudice the claims of plaintiffs who failed to communicate as
`required by the settlement between Plaintiffs and JLI and the Court’s order implementing that
`settlement. The Court should enter similar relief here.
`
`
`
`
`
`- 4 -
`19-md-02913-WHO
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:19-md-02913-WHO Document 4216 Filed 04/23/24 Page 6 of 7
`
`CONCLUSION
`For reasons set forth above, the Court should dismiss with prejudice these plaintiffs.
`Dated: April 23, 2024
`
`
`
`ARNOLD & PORTER KAYE SCHOLER LLP
`
`By: /s/ David E. Kouba
`
`
`
`John C. Massaro (admitted pro hac vice)
`Daphne O’Connor (admitted pro hac vice)
`Jason A. Ross (admitted pro hac vice)
`David E. Kouba (admitted pro hac vice)
`Angela R. Vicari (admitted pro hac vice)
`Lauren S. Wulfe (SBN 287592)
`
`
`Attorneys for Defendants ALTRIA GROUP,
`INC., PHILIP MORRIS USA INC., ALTRIA
`CLIENT SERVICES LLC, ALTRIA GROUP
`DISTRIBUTION COMPANY, AND ALTRIA
`ENTERPRISES LLC
`
`
`
`
`
`- 5 -
`19-md-02913-WHO
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:19-md-02913-WHO Document 4216 Filed 04/23/24 Page 7 of 7
`
`CERTIFICATE OF SERVICE
`I, John C. Massaro, hereby certify that on the 23rd day of April, 2024, I caused to be
`electronically filed the foregoing ALTRIA’S MOTION TO DISMISS WITH PREJUDICE
`NON-COMMUNICATING PLAINTIFFS’ CLAIMS with the Clerk of the United States District
`Court for the Northern District of California using the CM/ECF system, which shall send electronic
`notifications to all counsel of record.
`
`
`
`
`By: /s/ David E. Kouba
`John C. Massaro (admitted pro hac vice)
`ARNOLD & PORTER KAYE SCHOLER LLP
`601 Massachusetts Avenue NW
`Washington, D.C. 20001
`Telephone: 202-942-5000
`Facsimile: 202-942-5999
`David.Kouba@arnoldporter.com
`
`
`
`
`
`
`
`- 6 -
`19-md-02913-WHO
`ALTRIA’S MOTION TO DISMISS WITH PREJUDICE NON-COMMUNICATING PLAINTIFFS’ CLAIMS
`
`