The Merit Systems Protection Board approved a class of probationary employees who claim the U.S. Department of the Interior unlawfully terminated them under the Trump administration, saying proceeding as a class is the most efficient way to move the case forward.

MSPB Chief Administrative Judge Sara K. Snyder granted Thursday the workers’ bid to certify a class of probationary or trial employees who were fired in response to a Jan. 20 Office of Personnel Management guidance memo, which led to several cases challenging the firings of probationary workers.

Judge Snyder said that even though some workers have been reinstated, resigned or enrolled in a deferred resignation program and thus waived their appeal rights, “the class is still sufficiently numerous that individual adjudication would be inefficient, if not unfeasible.”

“Having considered the parties’ submissions and the circumstances here, I find that a class appeal is the fairest and most efficient way to adjudicate the appeal and that the putative class counsel and named appellants will adequately represent the interests of the parties,” Judge Snyder said.

According to the order, the agency started reinstating some putative class members March 13.

Overall, 986 workers have been reinstated, 269 resigned, 323 enrolled in the deferred resignation program and 274 are still on administrative leave, Judge Snyder said.

. . .

The workers are represented by James & Hoffman PC, Gilbert Employment Law PC and Cohen Milstein Sellers & Toll PLLC.

The D.C. Circuit revived a securities class action Tuesday accusing Harman International Industries Inc. of misleading investors in the run-up to a doomed merger, saying statements about sales goals left out details that would have helpfully informed investors.

The three-judge panel’s opinion said that statements about Harman’s personal navigation devices issued in April and September 2007 conference calls were not accompanied by “meaningful cautionary language” that would provide the cover of safe harbor protection. The panel overruled a district court on those two statements and also said the fiscal year 2007 annual report could not be excused as puffery.

Cautionary language must be tailored to the forward-looking statement and not “mere boilerplate,” the panel said, and consistent with the facts. But several of the cautionary statements relied on by Harman were mere generalities issued by the moderator of the conference call’s comments and the annual report that vaguely warned of risk, the panel said.

“To the extent other statements were tailored to the company’s PND business operations, the purportedly cautionary statements were not meaningful because they were misleading in light of historical fact,” the opinion said. “Referenced to amassed inventory did not convey that inventory was obsolete, as opposed to stocked with the latest, cutting-edge models.”

Steven J. Toll of Cohen Milstein Sellers & Toll PLLC, representing lead plaintiff Arkansas Public Employees Retirement System, told Law360 on Tuesday the ruling was “a very thorough, thoughtful opinion.”

“When a company puts out what we say were boilerplate statements, that should not give them protection under securities laws,” Toll said. “When they know that the problems exist, you can’t just warn that issues may come up … when in fact the risk is already occurring.”

Shareholders have argued that the company itself modified the products in early 2007, rendering all of its older-generation units in inventory obsolete, the panel said. Also, Harman’s 2006 PND sales had been lower than anticipated, resulting in the company storing the devices in a warehouse, according to the opinion.

. . .

The investors are represented by Steven J. Toll and Daniel S. Sommers of Cohen Milstein Sellers & Toll PLLC and Tim Battin of Straus & Boies LLP.

Counsel for two classes of purchasers of polyvinyl chloride pipe urged an Illinois federal judge Tuesday to grant preliminary approval to two $3 million settlements resolving their antitrust claims against an analytics service allegedly used in a conspiracy by PVC pipe makers to inflate the price of their products.

Oil Price Information Service LLC, a reporting service that provided pricing and market information to the converter defendants for a fee, has agreed to pay $6 million total and provide “extensive cooperation” to the plaintiffs in their pursuit of antitrust claims against the remaining defendants.

Under the terms of the deals, OPIS will pay $3 million to a class of direct purchasers and the other $3 million to a class of purchasers from non-converter sellers of PVC pipe.

. . .

The plaintiffs are represented by Pearson Warshaw LLP, Kirby McInerney LLP, Fegan Scott LLC, Levin Sedran & Berman LLP, Gustafson Gluek PLLC, Cohen Milstein Sellers & Toll PLLC, Lockridge Grindal Nauen PLLP, Sperling Kenny Nachwalter, Kaplan Fox & Kilsheimer LLP, Scott + Scott Attorneys at Law LLP, Douglas & London PC, Zelle LLP, Mark K. Wasvary PC and The Saunders Law Firm.

Constellation Energy (CEG.O), opens new tab, Duke Energy (DUK.N), opens new tab, Pacific Gas & Electric and all other operators of the country’s commercial nuclear power plants have been accused in a new lawsuit of conspiring to suppress pay for thousands of workers since 2003.

Two power generation workers filed the proposed class action on July 11 in Maryland federal court, accusing 26 nuclear plant operators and two consulting firms of illegally sharing wage information with each other in a conspiracy to keep compensation artificially low.

The lawsuit said the alleged information-sharing scheme violated antitrust law.

The defendants, a group that also includes Dominion Energy (D.N), opens new tab and Entergy (ETR.N), opens new tab, produce all the nuclear-generated electricity sold to consumers in the U.S., according to the 129-page complaint, opens new tab.

In a statement, Duke Energy on Monday called its compensation competitive and said it was “market-based, performance-oriented and aligned with the company’s business priorities.”

Constellation, Pacific Gas & Electric, Dominion and Entergy did not immediately respond to requests for comment.

Attorneys for the two plaintiffs – former employees at Dominion and Entergy – in a statement said they “are eager to fight for workers at nuclear power plants who have been victimized by a conspiracy to depress their wages.”

A former human resources executive in the industry said nuclear power companies exchanged compensation information “all the time,” according to the lawsuit. Nuclear plants allegedly exchanged pay data for “compensation comparison reports” that showed current wages and future increases, allowing companies to illegally coordinate.

The proposed class of nuclear plant workers contains at least tens of thousands of people, the lawsuit said.

. . .

For plaintiffs: Matthew Handley and George Farah of Handley Farah & Anderson; Shana Scarlett and Steve Berman of Hagens Berman; Brent Johnson and Daniel Silverman of Cohen Milstein Sellers & Toll

AT&T must face a proposed class action claiming it miscalculated married couples’ pension benefits, a California federal judge ruled, saying workers leading the suit provided evidence that the telecommunications company’s use of decades-old mortality data and interest rates was unreasonable.

U.S. District Judge James Donato largely denied AT&T Inc.’s motion for summary judgment on current and former workers’ Employee Retirement Income Security Act claims, ruling Wednesday there were material disputes about what a reasonable actuary would consider acceptable assumptions when determining the “actuarial equivalence” of retirement benefits.

The workers alleged in their October 2020 lawsuit that although federal law requires that joint survivor annuities be the same or higher value than single life annuity benefits, AT&T used factors that haven’t been updated in nearly 40 years to convert the single life annuities to joint survivor annuities. In June 2022, the workers asked the court to certify two classes containing nearly 300,000 people, and that motion is still pending.

In its motion for summary judgment, AT&T argued that ERISA doesn’t require “reasonable” or “up-to-date” assumptions when calculating benefits, and that “actuarial equivalence is viewed as a range” that can be accomplished in various ways.

But Judge Donato said that while ERISA doesn’t define the term, “it does not take a leap of faith to conclude that ‘actuarial equivalence’ would be understood by an actuary skilled in the art to connote the necessity of using reasonable assumptions.”

The judge noted that the workers’ actuarial expert, Ian Altman, stated that he advises his pension plan clients that actuarial equivalence factors must, at a minimum, reflect current financial market conditions and demographic expectations.

“A reasonable factfinder could conclude that the plan’s conversion factors, and the assumptions on which those factors are based, would not be considered ‘reasonable’ by an actuary exercising his or her professional judgment,” Judge Donato wrote.

. . .

Michelle Yau, who is representing the workers, told Law360 they’re looking forward to the upcoming trial.

“We wholeheartedly agree with court that Mr. ‘Altman’s opinions are grounded in evidence and sound actuarial methods’ and that AT&T is ‘not seeing the forest through the trees’ when it comes to our clients’ claims,” Yau said.

. . .

The workers are represented by Kai Richter, Michelle C. Yau, Daniel R. Sutter and Caroline E. Bressman of Cohen Milstein Sellers & Toll PLLC, Peter K. Stris, Victor O’Connell, John Stokes, Colleen R. Smith and Rachana A. Pathak of Stris & Maher LLP, Shaun P. Martin of the University of San Diego School of Law, and Todd Jackson and Nina Wasow of Feinberg Jackson Worthman & Wasow LLP.

A California federal judge on Wednesday refused to rethink her earlier order forcing Meta CEO Mark Zuckerberg to give a limited deposition in privacy litigation over a Facebook tool’s alleged collection of patient health information, rejecting Meta’s arguments that other executives are better suited to testify.

U.S. Magistrate Judge Virginia K. DeMarchi noted that in an April 10 order, she already held that Zuckerberg probably has “at least some unique first-hand knowledge of facts relevant to a claim or defense” in the litigation, which centers on Meta’s Pixel tool. She cited Zuckerberg’s role “as a decision maker regarding certain privacy-related matters at issue in this case,” the judge said.

Judge DeMarchi said she’s not convinced that assessment was incorrect. For one, Zuckerberg hasn’t denied that he has that knowledge, the judge said. And neither of the other executives made available to give depositions — Vice President of Product Development Fred Leach and Deputy Chief Privacy Officer Robert Sherman — claim to be the “final decision maker regarding the specific matters plaintiffs identify,” she said.

“If Mr. Zuckerberg indeed has unique information, as the court has found, it is difficult to understand how another executive or employee could testify about how Mr. Zuckerberg arrived at the decisions attributed to him, what factors he considered, or why he decided as he did, without engaging in speculation,” Judge DeMarchi said.

. . .

The plaintiffs are represented by Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC, Jason “Jay” Barnes of Simmons Hanly Conroy LLC, Jeffrey A. Koncius of Kiesel Law LLP, Beth E. Terrell of Terrell Marshall Law Group PLLC and Andre M. Mura of Gibbs Mura LLP.

Updating the Fair Labor Standards Act to reflect the nuances of remote work, reforming arbitration and tackling the issue of salary expectations to further reduce the pay gap are all issues employment lawyers wish policymakers would tackle in the latter half of the year.

Here, Law360 explores what kind of changes attorneys would like to see in an ideal world.

. . .

Reform Unwieldy Arbitration State of Affairs

Rebecca Ojserkis, an attorney with worker-side firm Cohen Milstein Sellers & Toll PLLC, said although she is not anticipating any movement on arbitration, she nevertheless thinks “we will probably reach a pressure point requiring some action.”

Some employers, who had opted for arbitration as the forum to resolve workers’ disputes, are now seeking to avoid that process when large groups of workers bring their claims in arbitration at the same time, Ojserkis said.

“There’s this tension that you can’t have your cake and eat it too,” she said.

Arbitration bodies, defendants and workers are starting to see that there needs to be a path forward to litigate claims.

“Whether that’s more consensus around what it looks like to have a mass arbitration, or whether that’s a departure from arbitration entirely and back to traditional litigation proceedings at a class and collective level,” she said. “But I think this is going to be a more frequent problem that hopefully we all can tackle together as time moves forward.”

. . .

Salary Expectations as Next Equal Pay Frontier

Equal-pay reform in the last several years has taken the form of limiting the so-called factor other than sex defense for pay equity claims and requiring employers to disclose compensation information in job postings.

A New York bill may be a window into the next frontier: prohibiting employers from asking about salary expectations.

Many jurisdictions already have what are called salary history bans, which prohibit employers from inquiring about a job candidate’s prior pay.

But salary expectations can be a proxy for prior pay, Ojserkis said, as inaccurate pay expectations can backfire on workers.

“Your expectation is more likely to be tied to different people’s experiences. If you’re in a world of transparency, where you can see what a range for a job is or was, you can talk openly with your colleagues about what pay can be offered,” she said. “But at the same time, there’s an anchoring effect.”

Employers know the budget they have available for specific roles, and employers should be able to set objective benchmarks for how prospective workers might fall into a specific salary range, depending on their particular skill set, years of experience and other factors, Ojserkis said.

“I hope to one day get to a world where employers are not only not asking what pay expectations are,” she said, “but are not feeling like that’s a question that even needs to be asked.”

A Florida state court has found that an addiction treatment center must face negligence claims in a suit from parents of an 18-year-old who died after leaving the facility, holding there are factual questions about whether the center had a duty to him and whether a breach of that duty caused his death.

In an order filed Sunday, Judge Maxine Cheesman of the Fifteenth Judicial Circuit denied Caron of Florida Inc.’s bid for summary judgment in the suit filed by Denise and Francis Mann, holding the couple’s expert witness testimony should go in front of a factfinder.

According to the opinion, Nathan F. Mann was admitted to Caron’s Florida facility, Caron Renaissance, on June 15, 2020, after completing an earlier course at another facility in Pennsylvania, where he and his parents lived.

On Sept. 12 of that year, Nathan Mann left or “eloped” from the facility without his cell phone or any money, and was hit by a train and killed two days later, according to the order, which says an autopsy showed the presence of alcohol, cocaine and Dextromethorphan in his system, though this is disputed by the parties.

Caron argued in seeking summary judgment that it owed no duty to Nathan Mann, as he left the facility as an 18-year-old adult, and that its obligation extended only to active patients. As such, Caron asserted, the facility did not place him in the “zone of risk” that led to his death.

Judge Cheesman disagreed, however, saying the Manns’ allegation is not that the facility breached a duty to prevent their son from leaving, but rather that it breached the standard of care for a treatment facility meant to prevent a risk of elopement and death.

. . .

Leslie Kroeger of Cohen Milstein Sellers & Toll PLLC, representing the family, added, “We appreciate the court’s thoughtful review of the case and its finding that Caron owed Nathan a duty of care. The evidence highlighting Caron’s negligence in this case is well-documented and egregious. I think a jury will agree that instead of helping Nathan get better in order to navigate the next step of a promising life, they caused him harm, which tragically ended in his untimely death.”

. . .

The Manns are represented by Rachael Flanagan, Leslie M. Kroger and Takisha Richardson of Cohen Milstein Sellers & Toll PLLC, and Susan Ramsey and Ryan P. Ingraham of McLaughlin & Stern PLLC.

The Fourth Circuit on Tuesday sent a revived class action alleging that shipbuilding military contractors used no-poach agreements to suppress wages back to district court, rejecting the contractors’ motion for a stay while they prepare to send a certiorari petition to the U.S. Supreme Court.

Last month, the contractors — among them General Dynamics, Huntington Ingalls Industries and CACI — asked the circuit court for a 90-day stay before it issued its mandate back to the Virginia federal court that initially dismissed the case last year. They argued that the cost of sprawling discovery in a case with allegations stretching back over 25 years could “threaten the profitability if not viability” of some of the companies.

But the circuit panel declined to pause the mandate Tuesday.

. . .

The plaintiffs are represented by Brent W. Johnson, Steven J. Toll, Robert W. Cobbs, Alison S. Deich, Zachary R. Glubiak and Sabrina S. Merold of Cohen Milstein Sellers & Toll PLLC, Shana E. Scarlett, Rio S. Pierce, Steve W. Berman, Kevin K. Green and Elaine T. Byszewski of Hagens Berman Sobol Shapiro LLP, George F. Farah, Nicholas Jackson and Simon Wiener of Handley Farah & Anderson PLLC, Candice J. Enders and Julia R. McGrath of Berger Montague and Brian D. Clark, Stephen J. Teti and Arielle S. Wagner of Lockridge Grindal Nauen PLLP.

PALM BEACH, FL – A Florida state court ruled that a lawsuit against Caron Treatment Centers’ Florida facility must proceed to a jury trial for the wrongful death of Nathan Mann, an eighteen-year-old Philadelphia teen who died after leaving Caron’s facility in September 2020. The court denied Caron’s motion for summary judgment, finding sufficient evidence that the facility may have breached its duty of care to Nathan, resulting in his death.

“I’m relieved that our claims will be heard by a jury,” said Denise Mann, Nathan’s mother. “Caron repeatedly encouraged us to trust them because they are the ‘experts.’ We trusted them with our son and, three months later, he was gone. He had such a promising future ahead of him.”

High school valedictorian and aspiring professional cellist, Nathan had been accepted to Temple University’s Boyer College of Music on a full-ride scholarship for the 2020 fall semester. While he had a well-documented history of mental health conditions, including ADHD, OCD, anxiety, and depression, Nathan was a high-functioning teen, exceptional student, and accomplished musician.

Concerned about Nathan’s misuse of cough syrup and alcohol, in May 2020, his parents enrolled him in Caron of Pennsylvania’s 30-day detox and treatment program. After successfully completing the program, Caron’s treatment team recommended that his parents send him to Caron Renaissance in Palm Beach County for further treatment. They reluctantly agreed, and Nathan was admitted to that facility on June 15, 2020.

Nathan spent three months in Caron’s day/night community housing program. On September 12, 2020, he left the facility without his cellphone or any money. Two days later, on the morning of September 14, Nathan was struck by a Tri-Rail train in Broward County. He died almost immediately of blunt force trauma. His body was not identified until September 25 – 13 days after he went missing.

“We appreciate the court’s thoughtful review of the case and its finding that Caron owed Nathan a duty of care,” said Leslie Kroeger, a partner at Cohen Milstein, who is representing Nathan’s family. “We look forward to presenting the evidence to a jury and demonstrating that instead of helping Nathan get better in order to navigate the next step of a promising life, Caron caused him harm.”

In denying Caron’s motion for summary judgment, the court outlined plaintiffs’ allegations that Caron deviated from multiple standards of care and negligently treated Nathan by, among other things, misdiagnosing him, failing to prescribe and treat his known disorders, alienating and confining him, and, on the afternoon he left the facility and did not return, failing to take proper steps to notify law enforcement. Nathan’s parents further allege that when they contacted Delray Beach Police on their own, Caron refused to cooperate.

The case, Estate of Nathan Mann v. Caron of Florida, Inc. d/b/a Caron Renaissance, Case No. 2023-CA-009963, is pending in Palm Beach County Circuit Court (15th Circ.). The court’s ruling sets the stage for plaintiffs’ claims to proceed to trial, where a jury will determine whether Caron’s treatment of Nathan contributed to his death.

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About Cohen Milstein Sellers & Toll, PLLC

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