Chapter 1 · The On-Ramp
An Introduction to Mass Torts
it’s my belief that presenting a holistic view of the mass tort world will finally pull back the curtain and encourage other talented individuals to join us.— Jacob Malherbe, X Social Media
Mass Torts (noun): Mass torts litigation “emerges when an event or series of related events injure a large number of people or damage their property.”2 everY YeAr, BILLIons of dollars are awarded to mass tort plaintiffs across the nation. You’re likely very familiar with the names of the corporations involved—Monsanto, Takeda, British Petroleum, DuPont, General Motors, Johnson & Johnson—and you may even be familiar with some of the individual cases being litigated.
As someone who helps mass tort lawyers find worthy plaintiffs, I’m often approached by attorneys who want advice on how to break into the field. So for all those who’ve tapped me on the shoulder or anyone who has read about these settlements and wondered, “Why can’t I be a mass tort lawyer?” this book was written for you.
I’m here to tell you that there’s very little stopping you from taking on mass tort work. I’m living proof that mass torts allow you to help a large swath of worthy victims, while also simultaneously earning impressive paychecks along the way.
If I’ve learned two things working as an advocate for mass tort plaintiffs, it’s that, one, the world needs more mass tort lawyers. We need people committed to helping everyday citizens play David to the deep-pocketed corporate Goliaths who prioritize profits over people’s health. And two, there are scores of lawyers out there who want to enter the mass tort space but don’t know how to do it—not to mention a surprising number of practicing mass tort lawyers who yearn for advice on how to improve their practices but don’t know where to find it.
You’ve probably read countless formal definitions for the term “mass tort.” But I think it’s better to think of things this way: Mass torts are civil actions taken in federal court by people who have been harmed by a particular product or action. These victims can be injured in a multitude of ways. Some may have developed cancer by taking a particular medication. Others may have been injured due to the deployment of a faulty airbag. Some people’s livelihoods may have been crushed due to an accident, like the BP oil spill. But the key determining factor in all these cases is whether lawyers can prove that a victim’s injuries are the result of using a specific product or being harmed by a negligent action.
Simply put: A mass tort lawyer’s aim is to show that some outside force—whether it’s a company, a college, or a government—has put profits before safety, thereby causing unnecessary harm to others.
Unfortunately, such reckless actions happen all the time, including by far too many companies who are governed by the will of their shareholders rather than the well-being of potential customers.
Take, for example, the blood thinner Pradaxa, which was prescribed to treat people with blood clots but turned out to run the risk of causing internal bleeding and brain hemorrhages. Pradaxa was approved the same way scores of other drugs are approved. Drug manufacturers create drugs, study them in human trials, and then turn to the FDA to approve them and sign off on their safety.
Sounds fair enough, right? But consider what happens when corners are cut, when studies are not rigorous enough, or, worse yet, when a company possesses potentially damning evidence that a drug poses serious side effects but refuses to publish those findings.
In my experience, mass tort lawyers have no interest in tearing down responsible companies or razing whole industries. The best mass tort lawyers—many of whom are contributors to this book—are driven by a deep-seated need to see justice served. They feel a calling to help victims navigate the complexities of our legal system. And I do too.
Justice is nothing more than a pendulum in motion, which should swing back and forth in a steady and controlled motion. When outside forces—whether lobbying groups or corporations—reach into our civic life, grab that pendulum, and hold it firmly in place, its natural rhythm is subverted.
I can say without hesitation that the mass tort lawyers that we work with at X Social Media, my advertising agency, want to help people. They have, time and again, tried to pry that moored pendulum from its locked position. Their aim is to recenter the pendulum and then gently set it back in motion again. But to do so, they often have to grab the public’s attention and do what must be done, legally speaking, to hold responsible parties’ feet to the fire.
Mass tort lawyers are the ones who rush headfirst into public squares, television studios, and courtrooms and yell, “Stop! Hold everything. We need to ask some important questions—right here, right now. Did you, corporation; did you, government; did you, university system do everything in your power to find and warn people about the potential dangers of your product or service?”
If a pharmaceutical company, for example, decides to produce Zantac, did it announce the potential risks of its users developing cancer? Are we certain that we want the same pharmaceutical companies who produce these drugs to run their own studies to determine if they are safe or not? Should drug companies be able to remove people who have died while participating in a clinical trial just to improve their efficacy data?
Think about people who’ve been taking Zantac or Pradaxa for decades but never knew about their potential deadly side effects? Would these drugs have been approved, let alone taken by people, if such damning data had come to light earlier?
We have a government built on checks and balances. So when large groups of people are harmed, and there’s a clear cause-and-effect relationship between a product and an injury, plaintiff-side mass tort lawyers act as a check on corporate malfeasance.
I’ve worked in this space long enough not to sugarcoat things. Some mass tort lawyers work in this field for financial reasons. Big settlements deliver big paychecks. There’s no denying that irrefutable fact. But I can say with absolute certainty that the vast majority of the mass tort lawyers I’ve worked with chose this field because they want to improve the lives of everyday people who’ve been harmed by corporate negligence.
I’ve chosen to write this book—and to share contributions from the best mass tort lawyers and service providers working today—in hopes of drawing other people into this worthwhile field. I believe knowledge begets passion, passion begets commitment, commitment begets hard work, and hard work can engender real and lasting change.
But mass tort work is conducted within a unique ecosystem—a group of talented individuals who lean on each other’s unique skill sets to help address societal wrongs and provide a modicum of justice to aggrieved parties.
It’s my belief that presenting a holistic view of the mass tort world—the history of mass torts, the skills needed to be successful, the different ways lawyers can practice mass tort law, and the importance of service providers—will finally pull back the curtain and encourage other talented individuals to join us.
What our community has long talked about but has yet to deliver is a comprehensive mass tort bible—one conceived, written, and vetted by the people who are actually doing the work. That changes, here and now, with this book.
We not only want to capture what it takes to win a case but what is required to build the best mass tort practice imaginable. We want to provide different advertising strategies—including my own deepseated belief in the power of Facebook advertising—to reach potential clients. We want to prove—with hard numbers—why it’s important to vet potential clients, show the pivotal role websites and intake centers play in acquiring clients, and offer a slate of resources and meetings that can establish or improve your standing within this field.
Together, my colleagues and I will reveal not only what each of us does but also show with absolute clarity why we do it. This book is designed to be a primer for those entering the space but also an encyclopedic tip sheet for mass tort lawyers who’ve already joined the fight.
Look, for example, at the recent Roundup mass tort litigations, and you’ll find that most juries have come to the same conclusion: Roundup is an herbicide whose chemical composition is very similar to Agent Orange, the same firebombing agent the US military used during the Korean and Vietnam wars. While it’s true that the Environmental
Protection Agency has yet to definitively classify Roundup as a cancercausing agent, other groups seem willing to admit as much, including the World Health Organization and countless European nations.
To give you some sense of the scope of these cases, there have been tens of thousands of people who have filed claims against Roundup’s current manufacturer, Monsanto, on the grounds that they are producing, in essence, a carcinogen. But it’s taken collaborations between mass tort lawyers and service providers to help those who’ve been harmed by these products seek justice.
Although a cluster of early Roundup lawsuits circulated in 2016, the first blockbuster verdict arrived in August of 2018. The plaintiff in that case, a California housekeeper named Dewayne Johnson who suffers from non-Hodgkin’s lymphoma, was awarded a $289 million compensation from Monsanto, which was later cut to $78 million.
That case, itself, is worthy of its own story. But in essence, the jury found that Monsanto knew of Roundup’s cancer risk and felt obliged to send a message to Monsanto that it had been negligent in keeping the risks and dangers of their product hidden from public view.
After that initial verdict, one domino fell after another. Big case after big case made its way through the courts, with one award coming in at $2 billion in May of 2019.
Consider, for a moment, all the work that went into making those verdicts possible. Trying these cases was only one piece of the puzzle. How did these mass tort lawyers find their clients? What advertising strategies did they employ to locate them? How were those potential plaintiffs vetted? Who handled all the contracts and paperwork? Who offered referrals? How were those cases closed?
When it comes to successful mass tort work, there are many roles and responsibilities to handle before a single case finds a courtroom. If you’re a lawyer who knows there are people scattered throughout the nation who’ve used Roundup and developed cancer, how do you find them? How do you locate people who’ve been injured so that you can build a stable of mass tort plaintiffs?
The simple answer: You advertise. Some agencies use television ads; others focus on billboards and web ads. But I’ve found Facebook-based advertising to be the most effective and least expensive strategy on the market today. Why? Because Facebook is a discovery tool. Think about the recent coronavirus pandemic. Which platform did people turn to when they were most scared and uncertain? They went to Facebook. They logged in to check on their friends and family, to gather advice from different parts of the country, and to use Facebook’s vast catalogue of content to reduce the pain and uncertainty of what they were feeling.
Facebook offers users the ability to build and network within an expansive community. It allows us the ability to reach out and feel closer to friends and family, especially during times of stress and crisis. But as I’ve written many times before, Facebook is the closest thing to an all-seeing, all-watching Big Brother panopticon that we have in our society today. It watches what you click, what you post, and what you search online. It sees and records all.
Anyone who signs up and logs onto Facebook is essentially waving his or her rights to privacy because all that data—your posts, your friends, your online viewing habits—is collected and turned into a profile. Facebook holds an expansive library of data on all of its users. Your every digital move in cyberspace is parceled out and dropped into various “data buckets.”
Imagine a digital library filled with millions of different data buckets, each labeled with a different word or phrase. One bucket may be labeled gardening. One bucket is labeled Roundup. One bucket says non-Hodgkin’s lymphoma. One bucket says Monsanto. But they’re all connected in a meticulously curated library of data.
Facebook’s online profile of you is based on which buckets you’ve filled according to your search history, which is why it’s such an incredible advertising tool. If Monsanto wanted to sell Roundup to a potential customer, they could call on Facebook to create targeted ads to reach potential customers by looking into a “farmers” bucket, a “home-gardener” bucket, or a “landscaper” bucket.
Now, consider the power that can come from using those same Facebook data buckets to track down people who used Roundup and developed cancer. When an initial surge of lawyers contacted us in 2016, desperate to find potential clients to build mass tort Roundup cases, we knew we could find them. All we had to do was identify the key Facebook data buckets that might lead us back to potential plaintiffs.
When an initial surge of lawyers contacted us in 2016, desperate to find potential clients to build mass tort
Roundup cases, we knew we could find them. All we had to do was identify the key Facebook data buckets that might lead us back to potential plaintiffs.
We could tell Facebook to look in its Roundup bucket and its non-Hodgkin’s lymphoma bucket, but we could also ask Facebook to look at a sub-bucket labeled B-cell lymphoma. A potential victim can have non-Hodgkin’s lymphoma or B-cell lymphoma or ten other types of non-Hodgkin’s lymphomas. If you identify the macro bucket, you can go looking for all of them.
It was our job to reach out, on behalf of our law firm clients, to Facebook users whose profiles were tied to these buckets and run ads on their feeds. While we ran a number of different ads, they all conveyed a similar message: “If you have non-Hodgkin’s lymphoma and used Roundup, you may be entitled to be part of a mass tort litigation and receive damages for your pain and suffering.”
We sent these targeted ads to Facebook users and directed them to customized websites, which allowed them to learn more about the hidden connections between Roundup and non-Hodgkin’s lymphoma. Facebook users who clicked on our ads were sent to these sites, where they were offered medical data, news stories, and Q&As with doctors. But we also offered visitors an opportunity to take a quiz to find out if they might have a potential claim against Monsanto, the current manufacturer of Roundup.
In essence, we put those ads in front of people that Facebook already suspected used Roundup in the past or were connected in some way to non-Hodgkin’s lymphoma. Some may have already posted on Facebook that they had lymphoma. Some may have searched Google for cancer survival rates, lymphoma treatments, or specific doctors.
Facebook scoured through its collection of data buckets to find people who might’ve been interested in such an ad, and then we worked to narrow that search down, which is why our hit rates and conversion rates are always so high. We mine the data Facebook has already collected, allowing us to find scores of potential plaintiffs at a fraction of the cost of other advertising platforms.
We mine the data Facebook has already collected, allowing us to find scores of potential plaintiffs at a fraction of the cost of other advertising platforms.
But that’s just the financial aspect of this equation. It’s the human element that matters far more. If you’ve done this work as long as I have, you know how heartbreaking these cases really are. Imagine someone who is typing the question, “What is non-Hodgkin’s lymphoma?” Or “Are my children going to be affected?” Or “What are the survival rates for non-Hodgkin’s lymphoma?”
Imagine what people are feeling when they post things like “I’m scared to death; I have non-Hodgkin’s lymphoma.” Or “If something happens to me, will you take care of my kids or grandkids?”
During times of crisis, fear consumes people’s lives. Let’s say someone develops non-Hodgkin’s lymphoma. Their immediate reaction is to wonder, “How did this happen?” Often, they blame themselves or assume it was inevitable, based on their genetics, that they were going to develop this cancer.
They are full of self-doubt and self-recrimination. Some scream to the heavens, “Why, God, did you allow this to happen to me?” But then as they’re scrolling through Facebook, filled with fear and anxiety, they come across an ad that suggests maybe their illness isn’t their fault. Who wouldn’t click on that ad and follow those breadcrumbs to see if that possibility might, indeed, be true?
And when they click on our ads, read hard news stories, and sample the evidence currently available, a tiny bit of weight is lifted off of their shoulders. Put yourselves in their shoes for a moment. They’re reading information that indicates that there’s a company out there producing a product that may have played a role in their illness. Perhaps fear turns to momentary anger, but behind all that rage is a glimmer of hope that out of personal tragedy some sliver of good may come.
The first step is almost always righteous indignation. Victims can’t help thinking, “A company made millions of dollars off of a product but didn’t care enough to ensure that the people who voluntarily used their product would be healthy?” They read our ads and scour through our websites, and they say, “Oh my God, this company played with my life in order to make extra money. I have a family. I have four kids. You know how pissed I am right now?”
But then that anger abates. And they say to themselves, “Wait a minute. You’re telling me that there’s a lawyer out there who won’t charge me a dime unless he or she wins the case? You’re telling me that a mass tort lawyer can take care of this for me for nothing more than a piece of a larger settlement? And you’re telling me that if he or she doesn’t win, their services are free of charge?”
I ask you this: Wouldn’t you take that quiz? Wouldn’t you pick up the phone if a lawyer called you to get more information about his or her services? Wouldn’t you join a group of crusaders to try to right this wrong that’s been imposed on you?
With each signed client contract comes a responsibility, however. That you, as the injured party’s attorney, will be his or her ally, a designated champion who is willing to get into the ring and do what it takes to see justice served.
Over the years, I’ve found that lawyers harbor their share of selfdoubt too. Private injury lawyers ask me all the time, “Why would anybody sign up with my little firm? Nobody knows me. Why would they trust me?”
The answer to that question is rooted in basic human nature. When potential plaintiffs are scrolling through their Facebook feeds, they don’t know who you are. All they know is that you were the one who placed an ad and were the first one to reach out and say, “I want to help you.” Maybe some potential clients recognize that it’s not that personal, that you didn’t individually select them out of the millions of Facebook users in existence. But most people don’t think about the logistics of how Facebook ads work because they’re just happy to find that someone—anyone, really—empathizes with what they’re experiencing and seems willing to help them in their time of need.
They don’t care if it’s the biggest law firm in America or a smalltown lawyer. They don’t care what the name of your law firm happens to be. All they really want is to ensure that the person on the other end of the web or the phone is open to listening to their story. They want to share their pain with someone. They want to ask questions: Why did this happen to me? What can you do for me to rectify this situation?
They know you can’t cure their cancer, but they do know you can fight for them. They want hope. They want to believe that you can help them gain compensation for them or their family.
Most plaintiffs don’t care who you are but rather what you say and what you promise to do. Which is another reason why mass tort lawyers, big and small, need to understand the value of outside vendors. Think of it this way: Do you want a harried paralegal handling these emotionally delicate calls? Or do you want to employ outside call centers who specialize in mass tort work—people who know how to listen and encourage people to sign up for your legal services?
Who do you want designing your websites to ensure potential clients feel comfortable and informed? Who do you want creating ads that will ensure potential clients click on them? Who do you want creating advertising strategies that will locate people who are actual claimants and not healthy people just looking for attention?
But by far the most important question to ask yourself, as a practicing lawyer, is this: If you’re interested in adding mass tort work to your docket, what’s holding you back? I meet personal injury lawyers from across the country who want to join the fight but don’t know how.
We will break down the necessary steps—every single thing you will need to know—in the pages that follow. But it’s best to start with the following central idea: When it comes to mass torts, no one works alone. In order to succeed, we all require collaboration.
In our space, mass tort lawyers need to help other mass tort lawyers. There are a number of ways you can become a critical engine in this complex but important machinery. You can be a mass tort lawyer who litigates cases. You can be an acquisitions lawyer who finds clients and hands them off to other lawyers to litigate. You can be a lawyer who handles workups and holds onto cases for when others need more referrals. You can go to meetings and network with other lawyers to learn the ropes. In our world, big players want to help smaller players and vice versa because we all know that collective efforts make for stronger cases, which in turn help the aggrieved.
What I hope you’ll take, more than anything else, from this book is that you’re not going to have to do this alone. We’re all working on these cases together, doing our part. Let’s return, for example, to the Roundup litigation we’ve been discussing in this chapter.
When lawyers came to us in hopes of finding potential Roundup clients, here’s what we did at X Social Media. We looked at everyone’s respective budgets. Some had large budgets; some had smaller ones. Whatever their budget, we created landing pages for them. We generated ads and connected them to intake centers to vet and sign up the leads that came in from those ads. We acted as a connector. If someone wanted to link up with an acquisitions lawyer, we’d make referrals. If they needed contacts and advice, we connected them to people who could offer wisdom.
Yes, we acted as an advertising agency, but we also evolved into a consulting service, in large part because of the flood of calls and emails that came pouring into our office. Some asked, “Do you know somebody who I can send these cases to?” Others asked for call center referrals and search engine optimization (SEO) specialists. We became consultants for these attorneys, pointing them in the right direction and toward the right service providers because we know the industry so well.
In short, we helped people. Lawyers. Service providers. Victims. And that made us a stronger, more nimble, and far more effective advertising agency.
In terms of our work on Roundup cases, we spent a total of $28 million and reached 180 million people with our ads. We’ve personally found eighty-five thousand leads for legal clients. Which means we were personally responsible for finding thirteen thousand to fifteen thousand of the total number of Roundup cases out there. In layman’s terms, that’s 20 percent of all of Roundup cases going into settlement. That’s 20 percent of the $8 to $12 billion that’s been awarded to aggrieved parties.
I’m proud of that contribution. I’m proud of the lawyers I’ve helped and the service providers I’ve recommended. But what I’m most proud of—and the reason I wrote this book—is that we stood up to major companies and played a key role in helping people who felt they were alone with no one to turn to. Those are the people who are worth fighting for. Those are the people whose gratitude means the world to me. I hope you’ll join me in continuing that worthy fight.
Welcome to the world of mass torts, as told by the best practitioners and service providers in the world.
Notes
2 Levin Papantonio, Textbook for the Nuts and Bolts of Mass Torts, 2019.