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.”

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.

The U.S. Supreme Court has agreed to take up at least one shareholder’s lawsuit when it reopens its doors in October, and securities attorneys from both the plaintiff and defense bars will be watching that appeal and several others as the year moves forward.

Securities practitioners told Law360 they are also following appeals that could further define the limits of past Supreme Court decisions on class certification, as well as a petition for the high court to hear a dispute over securities fraud suits against public company auditors.

Here’s a look at the cases and issues attorneys are monitoring:

Supreme Court’s next term

. . .

Another securities case that the justices are being asked to hear could determine the future of lawsuits against public company auditors that allegedly commit securities fraud.

BDO USA LLP has petitioned the Supreme Court to overturn a Second Circuit ruling in investors’ favor, one that the auditor says created a “dangerous precedent” that “would be devastating to the public markets and the accounting profession.”

Suing investors had initially waived their right to respond to the petition before the justices asked them to reconsider in June. They have now been given until Aug. 13 to respond.

Laura Posner, a partner in investor-side firm Cohen Milstein Sellers & Toll PLLC, said BDO could be a “really critical case,” especially if the Republican-led Congress follows through on a promise to get rid of the Public Company Accounting Oversight Board as a stand-alone regulator.

“It is already an extremely high burden to bring accounting fraud cases against auditors,” Posner said. “If the Supreme Court were to reverse the Second Circuit, I think that would have devastating implications for investors.”

The cases are FS Credit Opportunities Corp. et al. v. Saba Capital Master Fund Ltd. et al., case number 24-345, and BDO USA LLP v. New England Carpenters Guaranteed Annuity and Pension Funds et al., case number 24-1151, both before the U.S. Supreme Court.

. . .

A second shot at Slack?

Slack Technologies Inc. investors are preparing to bring their case before the Supreme Court for the second time in as many years, after the justices in 2023 issued a ruling that only partially resolved their case against the chat platform.

Investors argued that the company failed to warn shareholders that network outages brought on by increased demand would force it to pay out $8.2 million in customer credits.

But because Slack went public via a little-used method known as a direct listing, the Supreme Court said that claims asserted against the company under Section 11 of the Securities Act of 1933 must be thrown out because shareholders couldn’t prove the shares they purchased were issued by the company for the purpose of going public.

The court, however, declined to weigh in under a separate provision of the securities laws known as Section 12 and sent the case back to the Ninth Circuit for further review. The Ninth Circuit in February said the Section 12 claims couldn’t stand either, ruling that those allegations fail for the same reasons the Section 11 ones did.

The lead investor indicated in April that he might appeal that ruling to the Supreme Court, which has given him until July 10 to file a petition.

Palantir Technologies Inc. investors are likewise asking an appeal court to reconsider a post-Slack ruling, filing for Tenth Circuit review after a lower court ruled that the high court’s decision “forecloses” their case against the directly-listed company.

Posner of Cohen Milstein said that she didn’t think the Slack case or the Palantir case made a great vehicle for the Supreme Court to reassess its stance on post-IPO lawsuits, as many lower courts have not yet gotten a chance to weigh in on the impact of the 2023 ruling.

“I think it’s just premature at this point to know whether there is disagreement among courts or circuits, to know what standards courts are using at either the pleading stage or at the class certification stage or at the merit stage,” she said. “I personally don’t think it’s a ripe issue yet.”

The cases are Pirani v. Slack Technologies Inc., application number 24A1062, before the U.S. Supreme Court, and California Public Employees et al. v. Palantir Technologies Inc. et al., case number 25-1178, before the U.S. Court of Appeals for the Tenth Circuit.

Swiss privacy software company Proton on Monday sued Apple (AAPL), in U.S. federal court, accusing the technology giant of maintaining an illegal stranglehold on iPhone app distribution and charging excessive commissions to app developers.

Proton, which provides the secure email service Proton Mail, filed the proposed class action, in the federal court in Oakland, California, on behalf of app developers.

The lawsuit said Apple was violating antitrust law by forcing developers to use its payment processing services and imposing a 30% commission on most transactions.

A related class action was filed,  in May against Apple by the Korean Publishers Association and several other plaintiffs. Proton said it was building on that lawsuit, and was focused on winning a court order that would force Apple to allow competing app stores and payment processors on its iOS platform.

In a statement, Proton said it sued Apple “to set an important precedent that free people, not monopolies, will dictate the future of the internet.”

Apple did not immediately respond to a request for comment.

Founded in 2014, Proton offers secure consumer-facing apps for email, calendars and other areas. The company now has more than 100 million user accounts, according to its lawsuit.

Proton’s lawsuit estimated there were millions of potential class members.

Apple faces other antitrust lawsuits, including one filed by the U.S. Justice Department accusing the company of monopolizing the smartphone market. Apple has denied the claims and asked a judge to dismiss the case.

A California federal judge on Thursday preliminarily approved Bayer AG’s $38 million settlement with investors who accused the German multinational of downplaying litigation risks related to the weedkiller Roundup when it acquired Monsanto in 2018, saying the deal appeared to be “fair, reasonable and adequate.”

U.S. District Judge Richard Seeborg announced the decision at the end of a hearing held over Zoom, after asking counsel for the investor class how they determined $38 million was an appropriate amount to resolve the lawsuit and confirming the scope of the settlement’s release is confined to the claims of the case.

. . .

Gilden said the case had been “hard fought” and the agreement was an “important settlement and resolution” for their clients.

“After years of litigation and international discovery, this resolution, pending final approval by the court, will help ensure accountability of a foreign company under U.S. securities laws. It will also provide closure for ADR investors harmed by Bayer’s alleged misleading statements,” Gilden said.

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.

Grubhub cannot cite a deceptive practices settlement it entered into with the Federal Trade Commission and Illinois officials to terminate the city of Chicago’s lawsuit targeting prices it shows to customers, a state judge said on Monday.

Grubhub’s deal with the FTC and Illinois attorney general cannot flip the res judicata switch on Chicago’s case because settlement agreements do not constitute final judgments on the merits under relevant precedent, Cook County Circuit Judge William Sullivan ruled after hearing arguments on the company’s bid for judgment on the pleadings.

. . .

Representing Chicago, however, Brian Bowcut of Cohen Milstein Sellers & Toll PLLC asserted Grubhub’s motion was “very much an end-around.” Res judicata is an equitable doctrine, and “there is nothing fair or just about what Grubhub has attempted here,” Bowcut told the judge.

The city was aware the FTC was investigating Grubhub, but the federal case and settlement the regulator filed on the same day “was a surprise. It was unknown,” Bowcut said during the hearing. Nor was the city aware of any state investigation, he told Judge Sullivan.

“Grubhub is trying to accomplish by motion what it couldn’t accomplish in any settlement, which is a release of the city’s claims,” Bowcut added.

Beyond those circumstances, however, Chicago has its own sovereign interest in legally pursuing violations of its municipal code and recovering penalties for those violations, Bowcut argued.

. . .

Some of Chicago’s claims may overlap with Grubhub’s settled litigation, such as those on behalf of customers and unaffiliated restaurants, but the city’s claims on affiliated restaurants’ behalf mark a significant distinction from the federal litigation, Bowcut told Judge Sullivan on Monday. That’s a “whole ‘nother world” from what is covered in the settlement at issue, he said.

Chicago is represented in-house by Lucy Prather of the City of Chicago Law Department and Brian Bowcut and Donna Evans of Cohen Milstein Sellers & Toll PLLC.

The Fourth Circuit has kept its revival of a no-poach wage-fixing case against some of the nation’s biggest warship makers intact, rejecting a petition to rehear the case en banc after a three-judge panel kicked it back to district court last month.

The naval contractors accused of colluding on illegal no-poach agreements — including General Dynamics, Huntington Ingalls Industries and CACI — had petitioned the full circuit for a rehearing in late May. But on Friday, the court’s clerk wrote that none of the judges had requested a vote on rehearing the case by the full circuit.

Last year, U.S. District Judge Anthony J. Trenga of the Eastern District of Virginia dismissed the suit, ruling that because the plaintiffs in the case had adequately alleged a cover-up of the conspiracy, the typical four-year statute of limitations on the claims didn’t apply. But in a 2-1 decision May 9, the circuit panel reversed Judge Trenga’s ruling.

“Surely, Congress did not intend for us to reward conspirators who are savvy enough to avoid taking notes while punishing those who take notes but later destroy them,” U.S. Circuit Judge James A. Wynn wrote for the majority last month, citing the circuit’s 1995 ruling in Supermarket of Marlinton v. Meadow Gold Dairies. “This would unjustly ‘benefit those defendants who were cunning enough to commit their crimes initially in such a manner that there was no need for further concealment.'”

. . .

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, by Shana E. Scarlett, Rio S. Pierce, Steve W. Berman, Kevin K. Green and Elaine T. Byszewski of Hagens Berman Sobol Shapiro LLP, by George F. Farah, Nicholas Jackson and Simon Wiener of Handley Farah & Anderson PLLC, by Candice J. Enders and Julia R. McGrath of Berger Montague, and by Brian D. Clark, Stephen J. Teti and Arielle S. Wagner of Lockridge Grindal Nauen PLLP.

The Brief

• A family is suing Saint Anselm’s Abbey School in D.C., alleging their 12-year-old son was harassed due to his race and autism, with school administrators failing to intervene despite multiple complaints.
• The lawsuit claims the child faced racial slurs, disability mocking, and a physical attack by classmates, after which he was suspended for defending himself and then barred from re-enrolling.
• The family alleges the headmaster said they wouldn’t have accepted the child if they had known about his autism, despite being fully informed during the acceptance process.

WASHINGTON – A family is suing an elite private school in D.C., claiming their child was harassed because of his race and his disability – and that school administrators did nothing to protect him.

What we know:

The civil rights lawsuit was filed in D.C. Superior Court on Tuesday against Saint Anselm’s Abbey School – a private Catholic all-boys school in Northeast D.C. with fewer than 300 students.

The child – who was in sixth grade at the time – is only referred to as John Doe to protect his identity.

The complaint claims the harassment occurred in 2022, when the 12-year-old started at St. Anselm’s in the fall and eventually withdrew in the spring.

“The mother sent dozens and dozens of emails, naming names, naming times, naming places where the harassment was occurring,” said Alisa Tiwari, an attorney at Cohen Milstein. “She sent screenshots of text messages with these images so there’s good reason to believe the school did in fact know what is going on.”

The lawsuit claims the child was harassed relentlessly by classmates because he is Black and has autism.

“Students told him that they could call him the N-word whenever they wanted,” Tiwari said. The lawsuit also contains photos mocking his disability and race that were allegedly texted to the child by classmates.

. . .

“He is a fully functional kid where I think if he had gone anywhere else would have flourished academically and socially,” Tiwari said.