A recent Eleventh Circuit decision opens up a route for overturning the appellate court’s strictest-in-the-nation precedent requiring administrative exhaustion of all claims brought under the Employee Retirement Income Security Act, attorneys say, given that two judges in a panel concurrence advocated for such action following en banc review.

A three-judge panel in a unanimous published opinion on Wednesday backed a lower court’s decision to toss a proposed class action ERISA suit against Inland Fresh Seafood Corp. of America Inc. and its executives alleging mismanagement of an employee stock ownership plan.

In an opinion written by U.S. District Judge Federico A. Moreno, sitting by designation from the Southern District of Florida, the panel said it was bound to affirm because workers hadn’t first administratively exhausted their claims, as required by the Eleventh Circuit’s strict rule set in 1985 in Mason v. Continental Group Inc.  In that decision, the Eleventh Circuit rejected worker-side arguments that administrative exhaustion requirements didn’t apply to fiduciary breach claims under ERISA.

But a concurrence written by U.S. Circuit Judge Adalberto Jordan and joined by U.S. Circuit Judge Jill A. Pryor is grabbing attorneys’ attention because it advises the full Eleventh Circuit to take action that would ultimately undo that ruling, by repealing the circuit’s ERISA administrative exhaustion rule. In addition to a possible overturn of precedent by the en banc appellate court, practitioners predict the U.S. Supreme Court could eventually get involved.

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Kai Richter, of counsel at Cohen Milstein Sellers & Toll PLLC, said a move by the Eleventh Circuit to eliminate its ERISA administrative exhaustion rule “would bring the Eleventh Circuit back in line with circuit precedent elsewhere.”

Richter said he thought the most significant aspect of the decision was the en banc suggestion in the appellate judges’ concurrence.

“I think the real headline is that two of the three judges on the panel appeared to indicate that no administrative exhaustion requirement should apply in the Eleventh Circuit,” Richter said.

A California federal judge gave the initial OK to a $2.25 million settlement that aims to shutter a former lighting company worker’s class action claiming the business mismanaged a $25 million asset ownership sale that established its employee stock ownership plan.

U.S. Magistrate Judge Stanley A. Boone handed preliminary approval Thursday to a deal reached by named plaintiff Linna Chea, B-K Lighting Inc., the Lite Star Employee Stock Ownership Plan and the plan’s trustee Prudent Fiduciary Services LLC.

The deal, announced to the court in June, derives its value from a $1.5 million payment to ESOP participants, as well as a $750,000 bump to the lighting company’s stock through the reduction of a loan that helped pay for the transaction at issue in the case.

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Chea is represented by Caroline E. Bressman and Michelle C. Yau of Cohen Milstein Sellers & Toll PLLC and Daniel M. Feinberg of Feinberg Jackson Worthman & Wason LLP.

The state of Oregon has pushed back against Coinbase’s objections to a federal judge’s findings and recommendation that the state’s case against the cryptocurrency platform be sent back to state court, saying the judge “properly concluded that no basis for federal jurisdiction exists.”

The state of Oregon responded last week to objections raised by Coinbase regarding U.S. Magistrate Judge Jolie A. Russo’s findings and recommendation, issued in September, that the suit accusing Coinbase of putting Oregonians at financial risk through the operation of an unregistered securities platform be remanded to Multnomah County Circuit Court.

The state says Judge Russo “thoroughly addressed and rightly rejected Coinbase’s fanciful arguments,” and “faithfully applied the proper legal standards and relied on long-settled precedent to determine that Coinbase’s removal effort fails under either of its asserted jurisdictional theories.”

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The state of Oregon is represented by Brian A. DeHaan of the Oregon Department of Justice, Keil M. Mueller, Jennifer S. Wagner, Yoona Park and Norjmoo Battulga of Keller Rohrback LLP, Julie G. Reiser, Margaret (Emmy) Wydman and Christopher J. Bateman of Cohen Milstein Sellers & Toll PLLC.

Attorneys general of the District of Columbia and three states told a Tennessee federal court Wednesday that they have concerns about a combined $141.8 million worth of class settlements for antitrust claims against several multifamily landlords that allegedly used property management software company RealPage Inc.’s technology for rent price-fixing.

In their court notice, the attorneys general for Washington, D.C., Maryland, Washington and New Jersey said that they want to file a statement of interest in the proposed class action, which accused the landlords of conspiring to use RealPage’s revenue management software to set rents in ways that didn’t compete with one another.

The proposed class is currently seeking preliminary approval for 26 settlements worth $141.8 million. The 26 settlements don’t include RealPage itself.

But, according to the attorneys general, these proposed settlement agreements “could impact the state AGs’ ongoing enforcement actions currently pending in other courts.”

“For example, some of the releases in the proposed settlement agreements define released claims to include claims for ‘penalties,’ which often may be sought exclusively by government actors such as state AGs,” they claimed. “The state AGs would be prejudiced if they were not permitted to raise these issues with this court before preliminary approval and notice is issued to the class.”

The attorneys general also argued that the Class Action Fairness Act requires notices to be sent to relevant state officials for proposed settlements within 10 days of disclosure. Additionally, according to the attorneys general, the CAFA notices allow them to assess the settlements because the notices tell them about how many residents can get paid by settlements.

“To date, however, there has not been sufficient time to confirm whether the appropriate notice has been disseminated; for example, Washington has no record of receiving a CAFA notice,” they alleged. “Allowing the state AGs an opportunity to review the proposed settlements and submit a statement in response would be consistent with the role CAFA envisions for the states in protecting their economies and their residents’ interests.”

Also, the attorneys general claimed that they could provide their own “useful perspective” about the litigation because of related “pre- and post-filing investigations.”

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Washington, D.C., is represented by attorneys at Cohen Milstein Sellers & Toll PLLC, Spragens Law PLC, and Adam Gitlin, Mehreen Imtiaz and Ashley Walters of the Office of the Attorney General for the District of Columbia, Public Advocacy Division.

Maryland is represented by Schonette J. Walker and Melissa L. English of the Office of the Attorney General of Maryland and attorneys at Cohen Milstein Sellers & Toll PLLC.

New Jersey is represented by Brian F. McDonough, David Reichenberg, Jesse J. Sierant and Douglas T. Post of the New Jersey Office of the Attorney General and attorneys at Cohen Milstein Sellers & Toll PLLC.

The Virginia federal judge set to preside over the criminal prosecution of former FBI Director James Comey is a fair jurist who has dedicated his career to public service and isn’t likely to become rattled amid the widespread public attention to the case, say those who know him.

And while Judge Michael S. Nachmanoff is relatively new to the Eastern District of Virginia district court bench, he already has some experience handling politically sensitive — though less high-profile — cases.

Judge Nachmanoff was nominated to his seat in that district by President Joe Biden in 2021 after serving as a magistrate judge for the same court.

Since then, he’s dismissed several lawsuits involving the performance of the 401(k) plans of Capital One Financial Corp. and Booz Allen Hamilton employees. He also nixed claims from parents alleging Gerber Products Co. allowed dangerous amounts of heavy metals to get into baby food, and presided over a suit from Apple Inc. against the U.S. Patent and Trademark Office over the agency’s rejection of its trademark application for “Smart Keyboard.”

And he approved a $23.5 million deal between healthcare administration services company Evolent Health Inc. and its investors, resolving claims that the company damaged shareholders after it allegedly drove an important client “to the brink of bankruptcy.”

“Judge Nachmanoff is an excellent judge who takes his important role seriously. He is smart, practical, and treats all parties fairly,” said Cohen Milstein Sellers & Toll PLLC partner Daniel S. Sommers, who also represented the investors in that case.

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“Having been both a practitioner and a magistrate judge in the Alexandria Division of the Eastern District of Virginia, he is deeply familiar with its commitment to moving cases in an efficient and expeditious way,” Sommers said.

The U.S. civil rights agency responsible for enforcing worker rights will stop investigating complaints about company policies that don’t explicitly discriminate but may disproportionately harm certain groups, according to an internal memo obtained by The Associated Press.

The memo, emailed to all area, local and district office directors of the U.S. Equal Employment Opportunity Commission on Sept. 15, says that the agency will discharge by Tuesday any complaints based on “disparate impact liability,” a legal concept that argues that even if a policy looks fair on the surface, it can still be discriminatory if it creates unnecessary barriers that make it harder for certain groups of people to succeed.

The move marks a significant shift in EEOC enforcement, and critics say it weakens an effective legal tool used to root out workplace discrimination. That’s especially true when it comes to addressing algorithmic bias as more employers rely on AI in the hiring process.

Since AI draws on large amounts of data to generate results, it can replicate the patterns of inequality even if it’s not programmed to do so. In one infamous example, Amazon developed a resume-scanning tool to recruit top talent, but abandoned it after finding it favored men for technical roles — in part because it was comparing job candidates against the company’s own male-dominated tech workforce.

“As AI is becoming more and more popular, it’s particularly important that we have the disparate impact tools available to be able to police it and make sure it’s not being used to resegregate the workforce,” said civil rights and plaintiff-side employment attorney Christine Webber.

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Webber said the EEOC’s decision not to pursue these investigations “definitely erects an unnecessary hurdle” for workers who filed complaints, and now no longer get the benefit of a publicly-funded investigation, which can be difficult and costly. Unlike private lawyers, the EEOC has the ability to compel employers to provide information early in the process.

Bayer AG shareholders have asked a California federal judge to give final approval of its $38 million settlement with the German multinational to end claims it downplayed litigation risks related to the weedkiller Roundup, saying the deal, which seeks over $10 million in attorney fees, is fair.

A hearing for the motions is set for Oct. 30. The parties notified the court that they had reached a settlement in the case in February, and the deal was preliminarily approved in June, according to the suit’s docket.

U.S. District Judge Richard Seeborg said the deal appeared to be “fair, reasonable and adequate” when initially approving the deal in June.

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Counsel for the investors declined to comment on the suit Friday.

The investors are represented by Carol V. Gilden, Steven J. Toll, Christopher Lometti and Benjamin F. Jackson of Cohen Milstein Sellers & Toll PLLC and Nicole Lavallee and Alexander S. Vahdat of Berman Tabacco.

Agri Beef, the Indiana Packers Corporation and a proposed class of workers at red meat processing plants have reached settlements totaling $2.5 million in a suit alleging a nationwide conspiracy to suppress wages.

Lead plaintiffs Ron Brown and Minka Garmon asked U.S. District Judge Philip A. Brimmer on Friday to preliminarily approve the settlements with Agri Beef and its unit Washington Beef, along with Indiana Packers, bringing the total settlements in the suit to more than $200 million.

Agri Beef and Washington Beef agreed to a $1.4 million settlement in April, while Indiana Packers reached a $1.1 million settlement with the workers on June 10.

Agri Beef and Indiana Packers are the 11th and 12th parties to settle. Three defendant families are left in the litigation — Smithfield Foods Inc. and Smithfield Packaged Meats Corp., Greater Omaha Packing, and Agri Stats.

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The workers are represented by Shana E. Scarlett, Rio S. Pierce, Abby R. Wolf, Steve W. Berman, Breanna Van Engelen and Abigail D. Pershing of Hagens Berman Sobol Shapiro LLP, George F. Farah, Rebecca P. Chang, Nicholas J. Jackson, Rachel E. Nadas, Matthew K. Handley, Martha E. Guarnieri and William H. Anderson of Handley Farah & Anderson PLLC, Brent W. Johnson, Benjamin D. Brown, Alison S. Deich, Zachary R. Glubiak, Zachary I. Krowitz, Robert A. Braun, Sabrina Merold and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC, Brian D. Clark, Stephen J. Teti and Eura Chang of Lockridge Grindal Nauen PLLP, and Candice J. Enders, Eric L. Cramer and Julia R. McGrath of Berger Montague PC.

As fall kicks into gear, employers should accommodate workers’ requests for time off for religious holidays, seasonal illnesses and voting, and businesses that employ minors should watch for requirements that kick in during the school year, attorneys said.

The new season brings unique compliance issues. Employers could find themselves fielding questions about time off for holidays that tend to impact only certain communities of workers, for example.

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Accommodate Holidays

While employers generally provide time off for federal holidays in autumn, like Thanksgiving, they must also consider how to treat fall holidays for certain communities, such as Rosh Hashanah, Yom Kippur and Diwali, attorneys said.

The key is consistency, said Travis Jang-Busby of management-side firm Blank Rome LLP.

“You don’t want it to look like you’re favoring one group over the other,” he said.

Both management- and worker-side attorneys said floating holidays that workers can use as needed can be helpful in such situations, though there are special considerations to keep in mind.

“Best practice here is probably to have a bucket of days of paid leave that workers can use to apply to whichever holidays they observe,” said Rebecca Ojserkis of Cohen Milstein Sellers & Toll PLLC, who represents workers. “That way, employers aren’t making any judgment calls about trying to distinguish between … religions.”

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Give Time to Vote

Elections are happening in some jurisdictions this fall, including the mayoral race in New York City and statewide elections in New Jersey and Virginia. Employers in those places could get requests from workers for time to go vote.

“It’s great when employers provide time to vote,” Cohen Milstein’s Ojserkis said, adding that it is especially important in places that have restricted early voting and mail-in voting. “We certainly don’t want to be excluding anybody from the voting process simply because they have to earn a living wage.”

A Michigan state judge overseeing litigation against regulatory agencies over a dam that collapsed and caused widespread flooding said he will not bar an expert from testifying that the government ignored risks and took actions that increased the danger of a dam failure.

Court of Claims Judge James Redford on Tuesday rejected the arguments of the Michigan Department of Environment, Great Lakes and Energy as well as the state’s Department of Natural Resources, which had asked the judge to exclude or limit the testimony of a dam safety regulator at an upcoming trial.

In an opinion, Judge Redford said the expert was qualified to assess the regulatory oversight of the Edenville Dam near Midland, Michigan, which failed in 2020 and unleashed a flood that damaged thousands of properties downstream. The dam, formerly used as a hydropower generating station but idle at the time of the collapse, was owned by a private entity called Boyce Hydro.

Flooding victims have brought inverse condemnation claims against the state agencies that had oversight of the dam, saying they were aware of the risk it would fail and yet took actions that added to the danger.

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The class is represented by David Dubin of Dubin Law PLLC, Elizabeth Fegan of Fegan Scott LLC and Jason J. Thompson of Sommers Schwartz.

The mass tort plaintiffs are represented by attorneys at Johnson Law PLC, Dubin Law PLLC, Pitt McGehee Palmer Bonanni & Rivers PC, Fieger Law, The Miller Law Firm PC, Buckfire Law Firm, Cohen Milstein Sellers & Toll PLLC, McAlpine PC, Olsman MacKenzie Peacock, Giroux Pappas Trial Attorneys PC, Rasor Law Firm PLLC, Behm & Behm and Stern Law PLLC.