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

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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.

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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.

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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.

EQT Corp. has agreed to pay $167.5 million to investors who claimed the company overstated the benefits of its $6.7 billion merger with Rice Energy, according to a motion filed Thursday seeking preliminary approval of what the investors called the largest-ever stockholder suit deal lodged in Western Pennsylvania federal court.

Led by the Government of Guam Retirement Fund, Northeast Carpenters Annuity Fund and the Northeast Carpenters Pension Fund, the proposed class said it had reached the settlement after six years of litigation and three mediation sessions, with the last session in May producing the tentative deal to end their claims that EQT stock was inflated by false claims about synergies between the holdings of the two companies in the Marcellus Shale oil and gas formation.

“The $167.5 million recovery is particularly significant given, among other things, defendants’ arguments regarding loss causation and their assertion that plaintiffs’ damages at most constituted only a fraction of this amount,” said the brief in support of the deal.

“Moreover, the recovery — $167.5 million in cash — is notable as it is (by far) the largest securities class action recovery ever in the history of this district and the 14th largest in the history of the Third Circuit,” the brief said.

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The proposed class is represented by Steven J. Toll, Daniel S. Sommers, S. Douglas Bunch, Christina D. Saler and Benjamin F. Jackson of Cohen Milstein Sellers & Toll PLLC, Salvatore J. Graziano, Adam H. Wierzbowski, Jesse L. Jensen and Robert Kravetz of Bernstein Litowitz Berger & Grossmann LLP, and Michael A. Comber of Comber Miller LLC.

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.

The workers alleged in 2022 that beginning in 2014, the nation’s leading red meat processors — companies that produce nearly 80% of the country’s red meat — hired two consulting companies in an attempt to suppress workers’ pay in violation of the Sherman Antitrust Act.

Among the defendants to reach settlements with the workers is Tyson Foods at $72.5 million and JBS USA Food at $55 million.

In addition to the $1.4 million, Agri Beef and Washington Beef agreed to provide the testimony of at least one former employee and turn over noncustodial documents, including contracts with consulting companies and labor unions. Both settlements include agreements to provide data to assist with identifying potential members of the class.

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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.

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.

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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.

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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.'”

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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.

The U.S. Supreme Court revived retirement plan mismanagement allegations against Cornell University, the Sixth Circuit restarted a yacht company’s suit against its health benefits administrator and American Airlines took a hit for emphasizing socially conscious investing in its 401(k) plan decisions.

Here are five important decisions that came down in Employee Retirement Income Security Act cases during the first half of this year.

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6th Circ. Makes Waves with Yacht Co. Ruling

A Sixth Circuit panel’s decision to revive a Michigan yacht company’s allegations that a third-party administrator mishandled out-of-network claims got noticed by benefits lawyers, given that employers are facing a rising number of lawsuits alleging excessive health fees.

A three-judge panel on May 21 reversed the February 2023 dismissal of Tiara Yachts Inc.’s suit against Blue Cross Blue Shield of Michigan alleging BCBSM overpaid health claims from out-of-state providers and then later claimed savings from collecting the overpayments, breaching fiduciary duties.

The panel concluded that a lower court erred in holding that the boat company’s allegations over the billing practices of its self-funded health plan administrator were outside the reach of ERISA. By showing BCBSM retained control over plan assets, the yacht company had plausibly alleged fiduciary duties under ERISA were implicated in its allegations that BCBSM overpaid providers, the panel found.

The decision has already appeared in supplemental briefing in other ERISA health fee litigation disputes, and has caught the eye of several plaintiffs-side attorneys, including Kai Richter, of counsel at Cohen Milstein Sellers & Toll PLLC.

“I think it is a significant win, and I think it should send a chill down the spine of anyone who’s profiteering from excess health care expenses,” Richter said.

A proposed class of home sellers urged a Missouri federal court to deny two brokerages’ second request to stay proceedings against them in a consolidated antitrust broker fees class action while they finalize a parallel settlement in what sellers have called “copycat” proceedings in Georgia.

Weichert Co., eXp Realty LLC and two affiliated entities had asked the court for a second time in May to stay proceedings against them while they await an October final approval hearing on a $44 million settlement they reached with home sellers in a separate Georgia case over fee inflation practices.

But the Missouri class argued Thursday that this request is premature, given their plans to challenge the adequacy of that settlement at an October class action fairness hearing.

“The evidence is overwhelming that the settlements are unfair, unreasonable, and inadequate and should not be approved,” the home sellers said. “Defendants should not simply assume that final approval will occur when the Hooper court considers plaintiffs’ evidence and objections at the October 28 hearing.”

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The consolidated class is represented by Alexander Aiken, Beatrice Franklin, Floyd G. Short, Marc M. Seltzer and Steven G. Sklaver of Susman Godfrey LLP, Robert A. Braun, Benjamin D. Brown, Sabrina Merold and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC, Brandon J.B. Boulware and Jeremy M. Suhr of Boulware Law LLC, Eric L. Dirks, Michael A. Williams and Matthew L. Dameron of Williams Dirks Dameron LLC, Michael S. Ketchmark and Scott A. McCreight of Ketchmark & McCreight PC, Steve W. Berman, Rio S. Pierce, Jeannie Evans and Nathan Emmons of Hagens Berman Sobol Shapiro LLP, Julie Pettit of The Pettit Law Firm, Michael K. Hurst of Lynn Pinker Hurst & Schwegmann LLP and Frederic S. Fox of Kaplan Fox & Kilsheimer LLP.