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.
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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.
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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.
Ryan Wheeler of Cohen Milstein Sellers & Toll PLLC has recovered millions of dollars for his clients in benefits cases, like one claiming that Citgo shorted retirees in pension payments, and another saying that an Illinois casino used an employee stock ownership plan to craft a shady company sale, earning him a spot among the benefits law practitioners under age 40 honored by Law360 as Rising Stars.
The biggest case of his career:
Wheeler served as the lead associate in a case claiming that Citgo shorted workers through their pension payments by using outdated mortality data to calculate their benefits, resulting in a $14 million settlement for his clients. He said the deal, finalized by an Illinois federal court in January, is one of the largest settlements secured in this relatively new area of law — cases challenging the use of antiquated mortality data began popping up in 2019, and none have yet gone to trial.
Wheeler said he and his team secured key wins in the case that ultimately led his clients to clinch a settlement by defeating most of Citgo’s arguments that attempted to derail the case on motions for summary judgment. He said the judge sided with his team’s argument that the statute of limitations should not be limited to a four-year window for a certain class of participants, allowing them to recover benefits dating to 1995.
“I think the reason we were able to get a really spectacular result like that was because Citgo didn’t have much of a defense,” Wheeler said, adding that the company had been using decades-old mortality data to actuarially determine how much retirees were owed.
“I think they saw the writing on the wall and didn’t want to take that to trial,” Wheeler said.
His most interesting recent case:
Wheeler pointed to a proposed class action claiming that Argent Trust Co. sold inflated shares of a barbecue chain to an employee stock ownership plan, allowing the owners to make off with millions in profit as well as tax benefits, while workers were shortchanged.
In January, the Second Circuit knocked down the wealth management company’s bid to reverse a lower court’s order denying arbitration in the case.
“This has been a really gratifying case, because our clients are folks who worked as wait staff for close to minimum wage, and they’re standing up in court for themselves against the former owners, who made off with almost $100 million,” Wheeler said.
Wheeler has successfully litigated other cases aiming to tamp down on abuse through an employee stock ownership plan. In February, a federal judge gave final approval to a $7.1 million deal resolving a class action claiming that Illinois’ Casino Queen created an ESOP so it could buy company stock at an inflated price of $170 million. A year later, in 2019, the value of the stock dropped 95%.
Johnson & Johnson workers are urging a New Jersey federal court to maintain their proposed class claims that the company botched the management of prescription drug costs in its employee healthcare plan by allowing excessive pharmacy costs, asserting that company mismanagement resulted in concrete harm.
Doubling down on their allegations, named plaintiffs Ann Lewandowski and Robert Gregory filed a brief Monday opposing a motion from J&J to dismiss an amended complaint asserting violations of the Employee Retirement Income Security Act.
“This case presents a textbook example of fiduciary neglect: Defendants — Johnson & Johnson and its Pension & Benefits Committee — handed control of the plan’s prescription-drug program to Express Scripts with virtually no oversight, enabling Express Scripts to extract staggering markups that forced participants to pay inflated costs for essential medications while enriching the very service provider defendants were duty-bound to monitor,” the brief states.
In 2023, Lewandowski overpaid by about $210 for two prescription drugs, compared with retail prices, the brief says. She alleges she was unable to use manufacturer co-pay assistance cards that would have reduced her out-of-pocket expenses, which created a financial injury from J&J’s fiduciary breaches.
Because J&J maintained a fixed ratio between employer and employee contributions to the healthcare plan, increases in plan costs resulted in higher premiums for the workers, the brief says.
Lewandowski, who left J&J in April 2024, and Gregory, who retired in September 2020, paid triple the retail price for generic drugs, the brief says.
The named plaintiffs said they have standing to sue on behalf of tens of thousands of J&J employees under the Third Circuit’s 2024 decision in Knudsen v. MetLife Group Inc. , arguing that the court there held that plaintiffs have Article III standing if their complaint alleges they have or will pay more in premiums or other out-of-pocket costs as a result of a defendant’s ERISA violations.
The Summer 2025 issue of the Shareholder Advocate, our quarterly securities litigation and investor protection newsletter, features articles on:
- Managing corporate risk in the AI boom
- UFC fighters’ $375 million antitrust settlement
- The role of an amicus brief in the Supreme Court’s to dismiss an appellate review of class certification as improvidently granted
- Initial approval of investors’ $27 million settlement with InnovAge
- An interview with Fiduciary Focus columnist Suzanne Dugan on her new role as president of the National Association of Public Pension Attorneys
Harini Srinivasan of Cohen Milstein Sellers & Toll PLLC secured a $45 million settlement on behalf of U.S. Customs and Border Protection officers who claimed pregnancy discrimination and also challenged AT&T’s attendance point system, earning her a spot among the employment law practitioners under age 40 honored by Law360 as Rising Stars.
Her biggest case:
Srinivasan noted that one of her largest cases is Cynthia Allen et al. v. AT&T Mobility Services LLC , which she has been litigating in a Georgia federal court for six years since joining the firm.
In that case, two women lodged a suit challenging AT&T’s automated attendance policy that would assign employees points for every time they were absent or late, and once a certain number of points were reached, they would face termination, Srinivasan said.
Srinivasan explained that the system would not assign points if employees were late for certain reasons, but those reasons excluded pregnancy and morning sickness, resulting in the two lead plaintiffs being eventually terminated.
The case has been “the most rewarding client-relationship I have ever had,” Srinivasan said.
“These are women who are often just so excited about being at the beginning of starting their families and then it turns into sheer terror that they’re about to lose their jobs, lose the livelihood that’s going to support that family,” Srinivasan said.
While the two lead plaintiffs have reached a confidential settlement with AT&T, an intervening plaintiff is proceeding with her claims, Srinivasan explained.
Other notable cases:
The administrative case at the U.S. Equal Employment Opportunity Commission that led to a $45 million settlement for U.S. Customs and Border Protection officers who claimed the agency forced them to light duty once they became pregnant was a remarkable one, Srinivasan said.
She explained that in that case, a group of women claimed that once they made it known they were pregnant, not only would their duty change, their bosses would tell them that “they were a liability and … made to feel like their pregnancy was a barrier [for] them being able to do a job they had trained hard for.”
The settlement also led to CBP changing its employment policies, allowing women to decide if and when they wanted to go on light duty while pregnant, Srinivasan noted.
“There’s no requirement that you have to stay in active duty all the way up until the day you give birth, but it really should be up to them and their doctor to be making that determination, not their boss,” Srinivasan added.
Srinivasan said that another case that she has found particularly meaningful is a lawsuit lodged against the Salvation Army in Illinois federal court in 2022. There, five adults who enrolled in the Salvation Army’s rehabilitation centers are claiming they worked 40 hours a week, usually for the benefit of the organization’s thrift store, without getting paid minimum wage under the Fair Labor Standards Act.
“It’s just such an interesting and important case because these are incredibly vulnerable people, people on the brink of houselessness, or who’ve been in and out of incarceration, … and have been marginalized in so many ways,” Srinivasan said.
Her proudest moment:
For Srinivasan, her proudest moment happened in 2023, when the Seventh Circuit denied a group of staffing agencies’ bid to dismantle a class of about 13,500 Black workers who claimed they were not hired because of their race.
“There’s really nothing like the moment when the law catches up to the harm,” Srinivasan said, adding that she still remembers when the appeals court decision came in.
“It really affirmed that the discrimination happening through these staffing agencies is no less real or unlawful than if it was happening from a direct employer,” Srinivasan said.
The case eventually headed back to an Illinois federal court, which signed off on a $6 million settlement in April 2024, court records indicate.
They say you can get anything in New York City — and that includes wheelchair-accessible vehicles (WAVs) through taxi companies and rideshare apps. Uber’s and Lyft’s New York fleets include WAVs that enable people with disabilities to get a ride on demand, just as many other busy commuters do.
However, this ridesharing access is not common, according to New York-based attorney and disability rights advocate Aaron Marks. Aaron is an associate in the antitrust practice of Cohen Milstein, a plaintiff-side law firm representing disability rights organizations in a class-action lawsuit over rideshare companies’ lack of services for disabled passengers.
“There are jurisdictions and cities that have taken the initiative to force rideshare companies to stop blocking wheelchair users from their services, and New York City is one of them,” Aaron says. “We see in those jurisdictions that WAVs are available to people who need them.”
Accessible taxis and rideshares don’t exist everywhere. In cities like New York where they do, however, they’re a powerful reminder of the fundamental rights guaranteed by the Americans with Disabilities Act (ADA) and the opportunities that unfold when people with disabilities have the same access to transportation as their non-disabled friends and neighbors.
“Right now, there is a patchwork of local and state regulations, which leads to varying outcomes for people depending on where they happen to live,” Aaron says. “Somebody living in one city may have access to WAVs in their ridesharing app, but they could move to an apartment building across the street and no longer have access to the same vehicles because now they’re living in a different city. It’s an inconsistent experience.”
It’s important to understand that you have rights as a rideshare consumer with a disability. If you feel you’ve been discriminated against, you can file a complaint with Uber, Lyft, or whichever company you’re using.
You can also seek support from your state’s protection and advocacy agency (find a state protection agency) or file a complaint with the US Department of Justice (file a complaint).
- Rhode Island is suing 13 companies involved in the Washington Bridge’s design, inspection, and repair.
- The state’s lawyers are questioning what the companies knew about the bridge’s deterioration before its emergency closure.
- The questions focus on the bridge’s post-tensioning design and the discovered corrosion and voids.
The state’s lawyers have filed the questions they are asking contractors who inspected or worked on the doomed westbound span of the Washington Bridge as part of their far-reaching lawsuit against those who may have known about the bridge’s condition.
The Rhode Island attorney general’s office filed a series of “interrogatories” in Superior Court that, in effect, ask each of the 13 companies the state is suing what they knew about the potentially catastrophic deterioration of the westbound span in the decade preceding its emergency closure on Dec. 11, 2023.
By their very nature, the questions revolve around the way the bridge was constructed, with pre-stressed concrete bolstered by an internal web of steel rods and cables to add strength – a design called “post-tensioning.”
In post-tensioning, tendon cables are run through ducts in the concrete, pulled tight and anchored, squeezing the beams into compression to make them more resistant to bending or cracking under heavy loads. The ducts are filled with grout to secure and protect them.
When experts looked closely at the bridge, they found active corrosion of exposed tendon anchors, voids within the ducts, soft grout, corroded tendons and cracked, unsound concrete, according to a February 2024 report from VN Engineers.
What did the AG’s office ask the Washington Bridge contractors?
These were among the questions that Attorney General Peter Neronha, lawyer Jonathan Savage and a team of lawyers from the Palm Beach, Florida-based Cohen Milstein law firm, posed to AECOM Technical Services and the other companies involved in the design, repair and inspection of the westbound Washington Bridge:
- “How does the presence of voids in the grout surrounding the post-tensioning cables impact the Washington Bridge’s structural integrity?”
- “What are the potential consequences of corrosion in the post-tensioning cables, and how does this affect the Washington Bridge’s safety?”
- “Which descriptions of deterioration in the February 26, 2024 VN Engineers Report, if any, were you and your subconsultants aware of during your respective involvement with the Washington Bridge?”
- “Identify all steps taken by you in evaluating the Washington Bridge’s fracture critical elements.”
- “What methods should have been employed to properly assess the condition of the post-tensioned cables and grout during your work on the Washington Bridge?”
- And for AECOM and several other companies, this question: “Based on AECOM’s 2014 inspection and design plans, what critical issues should have been addressed in the proposed rehabilitation?”
- “During the rehabilitation design project … was any strengthening in the form of external post-tensioning considered? Why did you not recommend it?”
- Along with the interrogatories, the state’s lawyers also asked the defendants for a potential mountain of documents, including:
- “All internal memoranda, emails, reports, meeting minutes, and other communications documenting your concerns about the Washington Bridge’s structural integrity at any point in time.”
- “All inspection reports, engineering analyses, test results, and other documents that identify, describe, or evaluate the presence of voids in the concrete grout surrounding the post-tensioning cables, including any documents that assess how these voids impact the Washington Bridge’s structural integrity.”
- “All supporting data used for any reports you prepared during the work you performed on the Washington Bridge, including test data, inspection data, internal notes, and records.”
- “All internal memoranda, emails, reports, meeting minutes, and other communications documenting your concerns about the Washington Bridge’s structural integrity at any point in time.”
A little more than a year after the U.S. Supreme Court eased the requirements for bringing workplace bias claims in Muldrow v. St. Louis, it’s clear that the ruling is helping more workers keep discrimination cases alive.
In the Muldrow ruling, handed down in April 2024, the justices unanimously disavowed the heightened legal hurdles that some lower courts had imposed to block workplace bias cases over employment actions considered to have less serious consequences. Under the new standard, employees need not show they faced “significant” harm, but rather “some harm,” to move their suit ahead.
While the ruling marked a win for employees suing over discrimination, questions remained over whether the new precedent, which arose in the context of Title VII of the Civil Rights Act, could be invoked in cases under other anti-discrimination laws.
Additionally, the decision only addressed an unwanted job transfer, so it was not clear in Muldrow’s immediate wake whether a broader scope of workplace decisions could now sustain a legal claim.
In the 15 months since the decree came down — during which Muldrow has been cited by courts more than 540 times — the judiciary has yielded some early answers, and experts said they’ve largely been more good news for employees.
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Worker-side attorney Harini Srinivasan, a partner in Cohen Milstein Sellers & Toll PLLC’s civil rights and employment litigation practice, said Muldrow has given workers a stronger chance of addressing the more insidious forms of bias that can pervade workplaces.
“I’m seeing Muldrow being advanced as a possible tool to get at more subtle forms of discrimination, and holding employers to a standard that is still within the bounds of well-established case law, but is more nuanced,” she said. “It allows for more of these narrative-rich stories to prevail.”