Sonya D. Winner

For Winner, the co-chair of Covington & Burling’s class action litigation group, business is booming. “We’re very active, as busy as we’ve ever been,” she said. “Cases that have gotten up to the trial stage are an issue,” due to pandemic-related court closures, “but otherwise, there’s been no significant drop off.”

Clients include the National Football League, Viacom Inc., Wells Fargo Bank and McKesson Corp.

In one massive, long-running multidistrict class action that has proceeded for 11 years, Winner and a team of Covington lawyers she led prevailed for Wells Fargo. Plaintiffs sought millions of dollars in damages from the bank over claims regarding the bank’s methodology for calculating overdraft fees. Gutierrez v. Wells Fargo Bank NA, 1:09-md-02036 (S.D. Fla., filed June 10, 2009).

At the time the case was filed, many state laws prohibited enforcement of arbitration clauses in consumer contracts that prohibited class actions. But in 2011, when the U.S. Supreme Court ruled in its Conception decision that those laws were preempted by the Federal Arbitration Act, Winner was ready.

“Within two days we’d read the decision and drafted motions to enforce our client’s arbitration clause,” she said. The motions were denied multiple times, followed by three separate appeals to the 11th U.S. Circuit Court of Appeals. Following remand of a few remaining issues after the most recent appeal, the district court dismissed the claims of all class members other than the named plaintiffs. A fourth appeal to the 11th Circuit is pending.

“It’s taking so long because for eight years now there have been bursts of activity followed by long periods of waiting for the appellate process to work out,” Winner said.

She is one of the leaders of a Covington team representing McKesson Corp. in the sprawling opioid litigation, which includes thousands of separate lawsuits brought by states, counties, municipalities and numerous private parties against the manufacturers, distributors, prescribers and dispensers of the drugs. Some are venued in Ohio National Prescription Opiate Litigation, 1:17-md-2804 (N.D. Ohio, consolidated Dec. 12, 2017). Others are pending in state courts across the U.S.

A case filed by the City and County of San Francisco was recently remanded from the Ohio MDL to the Northern District as a bellwether case; Winner is lead counsel for McKesson in that matter. Separately, she has led a coalition of defendants successfully opposing certification of a negotiation class in the MDL, she recently presented oral arguments on the issue in the 6th U.S. Circuit Court of Appeals. In re: National Prescription Opiate Litigation, 19-4097 (6th Cir., op. filed Sept. 24, 2020).

Such a class is unprecedented and unconstitutional, she maintained, citing U.S. Supreme Court warnings against “judicial inventiveness” in applying the Rules of Civil Procedure. In September 2020, a circuit panel agreed, reversing the district court.

“Class action rules simply don’t permit such a class,” Winner said.

— John Roemer