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.

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.”

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.