A federal appeals court’s decision shutting down allegations that Las Vegas hotel-casinos colluded on room prices reduces legal risk for companies using algorithmic software for pricing decisions.

Even if the hotels were aware of their competitors’ use of Cendyn Group LLC’s pricing software, their individual decisions to use those products themselves were insufficient to support a federal antitrust claim, the US Court of Appeals for the Ninth Circuit held in a first-of-its-kind decision Aug. 15.

The ruling, which upheld a lower court’s dismissal of the case, is a significant win for Caesars Entertainment Inc., Wynn Resorts Ltd., and other hotel-casinos accused of using the software to inflate room prices on the Las Vegas Strip. The Ninth Circuit said there’s no conspiracy without an agreement.

. . .

The opinion suggests hotels can get around antitrust scrutiny as long as there is no evidence they communicated with each other, said Benjamin D. Brown, co-chair of Cohen Milstein’s antitrust practice.

“It’s potentially a step down a dangerous path of encouraging competing corporations to collude on price simply by choosing the same entity to outsource their pricing decisions,” Brown said. “It creates a very easy roadmap for price fixing.”

A New York federal judge on Wednesday ruled that Visa cannot enforce a $5.54 billion settlement in long-running multidistrict antitrust litigation against a class of Visa debit cardholders in a separate, similar suit, finding that the deal does not cover their claims, and therefore the claims can’t be released.

U.S. District Judge Margot K. Brodie of the Eastern District of New York issued a memorandum and order saying the class in In Re: Visa Debit Card Antitrust Litigation cannot be held to the terms of the settlement agreement reached in the current action, which accused Visa and Mastercard of charging improper merchant fees.

. . .

The Visa debit plaintiffs are represented by Brent W. Johnson and Daniel McCuaig of Cohen Milstein Sellers & Toll PLLC, by Daniel P. Weick and Christopher L. Lebsock of Hausfeld LLP, by Matthew Tripolitsiotis, Christopher J. Cormier, Matt Strauser, Ian Baize and Warren T. Burns of Burns Charest LLP, and by Joseph W. Cotchett, Adam J. Zapala, Brian Danitz, Gia Jung, Karin B. Swope, Thomas E. Loeser and Vara Lyons of Cotchett Pitre & McCarthy LLP.

The Equal Rights Center’s investigations and lawsuits detail how D.C. landlords turn away prospective tenants just because they use housing vouchers to pay rent.

Undercover rental applicants found blatant and widespread discrimination against housing voucher holders by landlords of luxury apartment buildings in Navy Yard, Shaw, and NoMa, according to a new lawsuit filed by the Equal Rights Center, a nonprofit civil rights organization.

The ERC’s “testers” inquired about renting at J.Coopers Row, Jefferson MarketPlace, J Linea, and Pinnacle but ran into unlawful requirements, such as minimum income for voucher holders and overly broad eviction and criminal background screenings, according to the lawsuit filed against JAG Management Company and Jefferson Apartment Group.

One manager stated, “their application will unfortunately be denied even if the voucher is sufficient enough to cover their full rent.”

More than 10,000 D.C. residents depend on housing choice vouchers. Formerly known as “Section 8” vouchers, these government-funded subsidies enable low-income tenants to secure housing in the private rental market that they otherwise couldn’t afford.

But the promise of finding a home in a desirable neighborhood frequently runs into a harsh reality: Landlords in D.C. often illegally deny or discourage access to available units, according to covert investigations and lawsuits filed in just the past five years. D.C. law prohibits denials based on source of income and sets strict limits on considering eviction and criminal records.

The legal action is the latest in a string of lawsuits brought by ERC that highlight a long-standing pattern of discrimination across the District. Through strategic litigation and fair housing testing, the ERC has uncovered widespread discriminatory practices in luxury and affordable housing properties totaling more than 3,000 units, according to legal filings.

The ERC, which relies in part on government grants, has pursued legal challenges based on several D.C. statutes, including the DC Human Rights Act, DC Consumer Protection Procedures Act, DC Rental Housing Act, Eviction Record Sealing Authority and Fairness in Renting Amendment Act, and DC Fair Criminal Record Screening for Housing Act.

Mark Zuckerberg has better things to do than sit for a deposition.

Or so lawyers for Meta Platforms suggest in a pending petition to the 9th U.S. Circuit Court of Appeals, objecting to the billionaire CEO being forced to give testimony in a proposed privacy class action.

The company invokes a controversial principle known as the apex doctrine to claim Zuckerberg should be spared the hot seat, arguing that he has no “unique” knowledge of the case, and plaintiffs’ lawyers could get the same information from lower-level Meta employees.

Plaintiffs want to question the CEO about allegations that Meta obtained private health information from millions of Facebook users without their knowledge or consent via its Pixel tracking tool. The claims echo those in a class action by users of fertility tracking app Flo Health, where a San Francisco jury on August 1 found Meta violated the California Invasion of Privacy Act. Damages are yet to be determined, but as I previously noted, the total could be huge.

In June, U.S. District Judge William Orrick in San Francisco agreed with U.S. Magistrate Judge Virginia DeMarchi and gave the plaintiffs a green light to depose Zuckerberg. However, the judge limited the session to a maximum of three hours and narrowed the scope of allowable questions to center on a consent decree Meta entered into with the Federal Trade Commission involving the Flo app and Zuckerberg’s role as a final decisionmaker on privacy-related matters.

. . .

Plaintiffs’ lawyers counter that state and federal procedural rules already allow subpoenaed witnesses to contest demands for their testimony. There should be “no special dispensation from civil discovery for corporate executives simply because of their status as titans of industry,” wrote lawyers from Gibbs Mura; Simmons Hanly Conroy; Cohen Milstein Sellers & Toll; Kiesel Law; and Terrell Marshall Law Group.

. . .

Plaintiffs’ lawyers, in justifying their request to question Zuckerberg, argue that from the start he’s been implicated in the case. “He had personal knowledge of Meta’s intent to receive this information,” they allege, “and he knew about and played a key role in Meta’s collection of sensitive health data.”

The appeals court has not indicated when it will rule on the petition, but Meta lawyers notified the district court that Zuckerberg’s deposition may proceed this month in Palo Alto if the 9th Circuit denies its mandamus petition by August 21.

A Massachusetts federal judge has preliminarily signed off on an $8.5 million settlement reached between Nuance Communications and more than 1 million patients in multidistrict litigation over a 2023 malware attack that exploited a vulnerability in Progress Software’s MOVEIt transfer file tool.

In an 11-page order issued Thursday, U.S. District Judge Allison D. Burroughs granted the plaintiffs’ motion for preliminary approval of the nonreversionary settlement reached with Nuance Communications, a Microsoft unit that provides clinical documentation services in the healthcare industry.

The settlement class consists of approximately 1.225 million patients of healthcare providers whose personal information was exchanged between the providers and Nuance, which uses Progress’s MOVEIt transfer tool to do so.

“The Court finds that the proposed settlement creates an equitable claims process that will allow settlement class members an opportunity to obtain reimbursement for certain types of harm they may have suffered as a result of events alleged in the litigation,” Judge Burroughs’ preliminary approval order said.

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The plaintiffs are represented by attorneys from Berger Montague PC, Hagens Berman Sobol Shapiro LLP, Lynch Carpenter LLP, Cohen Milstein Sellers & Toll PLLC, Lockridge Grindal Nauen PLLP, and Levin Sedran & Berman LLP.

In our fifth annual edition of “They’ve Got Next: The 40 Under 40,” the stakes are as high as ever. The young lawyers in our 2025 class excel at client work at their law firms and companies, take on weighty leadership roles, and still make time for mentorship and pro bono work.

During our evaluation process, we reviewed their records of success for clients, analyzed their approaches to client work, and unpacked their leadership roles and pro bono service. We also asked them what they’ve learned from legal mentors, what they’re most proud of, and how they define success, among other questions.

For our 2025 honorees, the future of the legal profession begins now. Learn more about them in our interactive report.

Robert Braun, Partner, Age: 40, Cohen Milstein Sellers & Toll

Please describe two of your most substantial, recent wins in practice.

As co-lead counsel in Moehrl v. National Association of Realtors, I had the opportunity to make a tremendous difference to millions of people by reducing the cost of the largest transaction most people engage in during their lifetime.

Nothing about this case was cookie cutter. There was no existing government enforcement action. We had to sort out a working damages and impact model for challenged practices that were over a century old, were still in place, and were pervasive throughout the country. The defendants had every incentive to—and did—fight us tooth and nail.

Despite these challenges, we were able to certify a class and work with our partners in a parallel case to reach significant pre- and post-trial settlements. I was closely involved in those settlements, including the 100-plus page $418 million settlement against NAR that involved industry-wide reforms.

In re Resistors Antitrust Litigation, which held the world’s largest manufacturers of resistors accountable for conspiring to eliminate price competition in the global and US markets, I was trusted with significant responsibility for developing the case theory and evidence and had the opportunity to depose senior executives from several of the world’s largest electronics companies, including in Japan.

What is the most important lesson you learned as a first-year attorney and how does it inform your practice today?

Something I learned early in my career is the importance of taking ownership in your cases. It can be easy for young attorneys to approach a case as a series of discreet assignments. And some firms track their associates this way. But a way to distinguish yourself as a young attorney, or at least one of the ways I tried to distinguish myself, is to think of cases holistically and determine what work is necessary in order to achieve the client’s goals. Associates who take that approach, including by generating their own projects, often get more interesting and fulfilling work (as well as the eternal appreciation of their senior colleagues).

As an example, early in my career, I cut my teeth on an antitrust case involving tiny but ubiquitous electronic components called resistors. By throwing myself into the documents and helping to develop the case theory, I was given opportunities as a young attorney to depose senior executives at large international electronics companies.

How do you define success in your practice?

Success for me consists of three things. First, has my work made my clients—whether they be individuals, businesses, or a class— better off? Second, is the work I’m doing helping to create a more just and fair society? And third, am I working on interesting and novel legal issues with colleagues I enjoy being around?

Litigating is incredibly hard work and many of the cases I’m involved in require years of effort to achieve important milestones, let alone a settlement or judgment. But I’ve been incredibly lucky to find all three kinds of success in my practice and at Cohen Milstein.

What are you most proud of as a lawyer?

I’m especially proud of our real estate commission antitrust litigation against the National Association of Realtors and large brokerage companies. My firm investigated and helped bring the original lawsuit, which sought to make a real difference to millions of people by reducing the cost of what is, for most, the largest transaction they’ll engage in during their lifetime.

These were risky and complex cases. They challenged deeply ingrained practices that were over a century old, pervasive throughout the country, and central to the real estate brokerage industry’s business model. Not surprisingly, the defendants fought us tooth and nail.

I began working on the case in its early days and am appreciative that my firm trusted me to help lead the litigation. This involved working to develop the core case theory and evidence, deposing several CEOs, overseeing expert discovery—and later—playing a major role in drafting and negotiating the settlement with NAR that has, quite literally, changed the residential real estate industry for the better by impacting how houses are bought and sold across the country.

Download Robby’s Bloomberg Law 40 Under 40 profile.

Shareholders suing Nike Inc. over what they say was a failed business strategy responded Monday to a motion to dismiss the proposed class action, arguing that they have 19 confidential witnesses who can prove that the company painted an overly rosy picture of its prospective growth.

Suing investors claim that Nike lost them billions of dollars by switching to a business growth strategy in 2020, known as consumer direct acceleration, or CDA, that was a “ticking timebomb.”

While Nike has argued that the allegations amount to “fraud by hindsight” and should be dismissed, shareholders responded Monday that they have the testimony of over a dozen former employees who will say otherwise.

Nineteen confidential witnesses “detail severe, contemporaneous problems in all six CDA components — accounts that are further corroborated by defendants’ later admissions and news reports — undermining their positive public statements when made,” according to a motion opposing dismissal that was filed in Oregon federal court Monday.

Investors, led by the City Pension Fund for Firefighters and Police Officers in the City of Pembroke Pines, Florida, sued in 2024 claiming that a series of poor financial results released by Nike beginning in December 2023 led to multiple stock drops, with the price at one point falling by 20% — the largest such drop in Nike’s history, according to suing shareholders.

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The proposed class is represented by Carol Villegas, Irina Vasilchenko, Matthew Grier, Nicolas Apter-Vidler and Mark Willis of Labaton Keller Sucharow LLP, Jonathan Cohen of DRRT, Steven Toll, Molly Bowen and Margaret Wydman of Cohen Milstein Sellers & Toll PLLC and Timothy DeJong, Keith Ketterling and Cody Berne of Stoll Berne.

A new framework the Seventh Circuit laid out for certifying collective actions in wage and hour litigation has attorneys for both employers and workers at first blush feeling relieved, as the panel majority put forward a flexible approach that gives lower courts discretion.

The Seventh Circuit panel majority on Tuesday said in Monica Richards v. Eli Lilly & Co. et al.  that its framework could result in either one or two steps for collective certification.

That departed from the approach of the Ninth Circuit, which recently maintained a long-standing two-step approach that requires only a “modest factual showing” for conditional certification. It also strayed from the Fifth Circuit, which shifted to a “rigorous” one-step test, and the Sixth Circuit, which created a “strong likelihood” alternative to two steps.

Under the Seventh Circuit’s new approach, when evaluating whether workers are similarly situated to proceed together as a collective, district courts must weigh evidence from both sides regarding similarity. Courts can also issue notice to potential plaintiffs when the named plaintiffs have raised at least a material factual dispute about the similarity of potential plaintiffs.

. . .

But the Seventh Circuit panel majority decided to go in a new direction, while drawing from the U.S. Supreme Court’s 1989 holding in Hoffmann-La Roche Inc. v. Sperling .

“It is certainly a departure from what most courts in the Seventh Circuit were doing,” said Rebecca Ojserkis of worker-side firm Cohen Milstein Sellers & Toll PLLC.

It also moves away from the new tests that came from the Fifth Circuit’s 2021 ruling in Swales v. KLLM Transport Services LLC and the Sixth Circuit’s 2023 ruling in Clark v. A&L Homecare & Training Center LLC , Ojserkis said.

. . .

The new approach also could lead to uncertainty, Cohen Milstein’s Ojserkis said.

“This standard, in trying to provide more guidance to district courts, still has a lot of opening for district court discretion,” she said. “There’s a lot of room for parties to have more questions from this standard.”

A federal lawsuit accuses 32 elite universities of violating antitrust laws by using early decision admissions to inflate prices and reduce competition.

A controversial college admissions practice is facing legal scrutiny, as current and former students of elite universities accuse their schools of conspiring to inflate prices through the use of early decision.

Early decision admissions policies allow students to apply ahead of the regular admissions deadline, giving them a better chance of acceptance. Students pledge to attend if a college offers a seat, but the acceptance decision often comes before students know how much financial aid the school will provide. Binding early-decision plans prevent students from receiving and comparing offers from other schools.

That setup, according to a lawsuit filed Friday in federal court in Massachusetts, puts students at a disadvantage and lets colleges keep prices high. The lawsuit argues that schools are not incentivized to provide generous financial aid to early decision applicants because they know no other school can compete by topping their offer. Those policies create and maintain a conspiracy between schools that reduces price competition and violates antitrust law, the complaint says.

The case strikes at the heart of a practice that experts say exacerbates wealth inequality in higher education. Early decision gives an advantage to affluent students who can commit to enroll without fear of cost, at a time when the average sticker price for private schools is nearly $63,000. The process can allow colleges to secure tuition revenue early on and lock in students who can afford to pay more out of pocket.

“This is not an equitable system,” said Benjamin D. Brown, an attorney at Cohen Milstein Sellers and Toll, which is representing the four students alongside the law firm Langer Grogan and Diver. “There’s a lot of scrutiny on college admissions right now, and people want to make them as fair as possible.”

The Ninth Circuit aligned with several other federal appeals courts when it recently struck down a clause in a food service company’s employee health plan that barred class or representative actions, marking the latest in a series of setbacks for employers looking to push federal benefits suits into solo arbitration.

A three-judge appellate panel on Monday affirmed in part and reversed in part a district court’s July 2023 denial of a motion to compel arbitration from Sodexo in a proposed class action led by Sodexo employee health plan participant Robert Platt, who claimed that a health plan fee assessed against tobacco users violated the Employee Retirement Income Security Act.

Monday’s decision held that a representative action waiver in an arbitration provision tucked into Sodexo’s employee health plan was invalid under the Federal Arbitration Act’s effective vindication doctrine, which allows judges to overrule an arbitration agreement if it blocks a party from being able to bring claims under federal law.

“What it’s really saying is that the plan sponsors can’t get the kind of arbitration that they want, or at least it will be very difficult for them to get what they want,” plaintiff-side attorney Kai Richter, of counsel at Cohen Milstein Sellers & Toll PLLC, said of the Sodexo decision.

The Ninth Circuit’s ruling follows similar findings invoking the effective vindication doctrine to thwart arbitration language in plan documents that purport to block representative relief or action by an individual plan participant. The Sixth Circuit ruled along those lines in October 2024, as did the Second Circuit in May 2024, the Third Circuit in June 2023, the Tenth Circuit in February 2023 and the Seventh Circuit in September 2021.

The Sodexo ruling “confirms the law that was already emerging in other circuits” on how the FAA’s effective vindication doctrine dovetails with ERISA, according to Richter.

“The Representative Nature of ERISA Actions”

The panel’s published decision Monday first affirmed the lower court’s decision to reject Sodexo’s bid to force individual arbitration of ERISA claims for benefits and equitable relief. The panel concluded that under the FAA, consent was required from individual plan participants, which Sodexo hadn’t obtained when it unilaterally amended the plan to add an arbitration clause.

On Platt’s ERISA fiduciary breach claim, the panel reversed the lower court’s denial, finding that because the relevant consenting party for that claim was the plan and not individual participants, Sodexo had obtained consent. But the panel also found the arbitration provision’s representative action waiver triggered effective vindication because it purported to block Platt, the health plan participant who sued on behalf of other participants and the plan itself, from bringing a fiduciary breach claim.

Richter, at Cohen Milstein, said that the court’s finding on effective vindication was “very significant,” because the holding means even when employers make a valid agreement to arbitrate with a benefit plan, “you can’t force a party to litigate in a non-representative capacity.”

“It preserves the representative nature of ERISA actions,” Richter said.

Despite the effective vindication holding, the panel didn’t rule that the entire arbitration provision was invalid, leaving the lower court to determine whether the representative action waiver that ran afoul of the FAA was severable from the rest of the agreement.