The U.S. Supreme Court’s ruling Thursday that an arbitration exemption can cover delivery drivers, who complete the last leg of an interstate journey but themselves don’t cross state lines or touch a vehicle that does, doesn’t entirely address distribution agreements and class action waivers, attorneys said.
In Flowers Foods Inc. et al. v. Angelo Brock, the justices unanimously sided with drivers bringing wage claims, finding that they fall under the Federal Arbitration Act’s Section 1 carveout for transportation workers engaged in interstate commerce and therefore can keep their claims in court.
However, attorneys said potential pathways remain for companies to keep such drivers’ claims out of court, and that the justices’ ruling is narrow.
. . .
However, worker-side attorney Rebecca Ojserkis of Cohen Milstein Sellers & Toll PLLC said Thursday’s decision was undoubtedly a win for drivers.
“There are thousands upon thousands of workers who now can pursue their claims in court,” Ojserkis said. “This is a huge development for a really substantial body of workers.”
But she acknowledged that “what workers this applies to is to some extent still an open question.”
The distribution agreements question in future litigation might separate last-mile drivers like the ones in Flowers Foods from those in other cases who do not take title of and then resell the goods at any point, said Ojserkis, who added that she represents drivers in the latter situation.
Another question is whether a worker who avoids arbitration under Section 1 can still bring claims on behalf of a class, when the underlying arbitration agreement contains a class action waiver, according to Ojserkis.
The answer to that question might depend on severability language in the contracts or where the worker brings the case, as some states say class action waivers are unenforceable, she said.
With such issues remaining, perhaps companies will see arbitration agreements as too complicated and instead opt to stay in court, especially when a worker does a combination of different kinds of transportation work, Ojserkis said.
“Instead of trying to creatively figure out how to still get into arbitration,” she said, “I would
encourage employers to think about whether this push to keep things out of court is still a venture they should pursue.”
A top Trump administration attorney told the D.C. federal judge overseeing a slate of consolidated Jan. 6 civil suits against President Donald Trump and others Thursday that the president’s immunity from civil litigation should halt all discovery in the suits, even as it pertains to other defendants.
. . .
The plaintiffs are represented by Joseph M. Sellers, Alison Sarah Deich, Brian Christopher Corman, Alisa Tiwari and Nina Jaffe-Geffner of Cohen Milstein Sellers& Toll, Edward G. Caspar, Jeffrey Blumberg and Marc D. Epstein of the Lawyers’ Committee for Civil Rights Under Law, Faith E. Gay, Joshua S. Margolin and Babak Ghafarzade of Selendy Gay PLLC, and William J. Blechman, Elizabeth B. Honkonen and Jeffrey Todd Foreman of Sperling Kenny Nachwalter, among others.
The Eleventh Circuit on Tuesday reinstated a proposed class action against a Southern Co. subsidiary from married retirees who said outdated life expectancy data caused them to lose out on benefits, holding that a lower court erred in ruling federal benefits law didn’t require using reasonable actuarial assumptions in annuity conversions.
In a 67-page opinion by U.S. Circuit Judge Robin S. Rosebaum, a three-judge panel reversed a Georgia federal court’s 2024 decision dismissing the Employee Retirement Income Security Act suit led by ex-workers William Drummond and Richard Odom and remanded the case for further proceedings.
. . .
The retirees are represented by Michelle C. Yau and Daniel R. Sutter of Cohen Milstein Sellers & Toll PLLC, by Peter K. Stris, Radha (Rachana) Pathak and Douglas Geyser of Stris & Maher LLP and by John T. Sparks Sr. of Austin & Sparks PC.
As college students start their summer internships, companies should keep in mind what attorneys say are the hallmarks of running a smooth program: appropriate work for interns and proper compensation.
While companies can run unpaid internship programs if the work performed primarily benefits the intern and involves training, interns should be paid if the work they’re doing is substituting the work of an employee, attorneys told Law360.
. . .
Here, Law360 shares three tips to keep this summer’s paid and unpaid internship programs compliant with the law.
Labels Alone Won’t Protect You
The work that interns perform, not how their internships are labeled, determines whether the work performed during a summer internship should be compensated.
If the work performed replaces that of an employee, if it doesn’t have a defined purpose toward their academics, and if it doesn’t count for college credit, that work should be paid, said Rebecca Ojserkis, a worker-side attorney at Cohen Milstein Sellers & Toll PLLC.
In that case, the intern would need to get paid the full minimum wage under either federal or state law, even if their internship is technically considered unpaid, Ojserkis said.
“The one thing for interns to keep in mind, and employers as well, is that labels don’t matter,” she said.
This past year, 10 lawyers across the country at plaintiffs’ firms big and small helped secure millions of dollars in settlements and verdicts for their clients, going up against powerful defendants like Google, Monsanto and the Trump administration, earning the attorneys recognition as Law360’s Titans of the Plaintiffs Bar for 2026.
This year’s list features attorneys who have handled a variety of class actions, multidistrict litigation, derivative suits and more.
- Mike Arias, Arias Sanguinetti
- Matthew L. Schwartz, Boies Schiller
- Deepak Gupta, Gupta Wessler
- Gretchen Freeman Cappio, Keller Rohrback
- Michael P. Canty, Labaton Keller
- Elizabeth Cabraser, Lieff Cabraser
- John Yanchunis, Morgan & Morgan
- David Knotts, Robbins Geller
- Brent W. Johnson, Cohen Milstein
- Linda M. Dardarian, Dardarian Ho
This year’s recipients’ expertise ranged from intellectual property to derivative class actions, to antitrust law, with Cohen Milstein Sellers & Toll PLLC’s Brent W. Johnson securing compensation under antitrust laws specifically for lower-wage workers. Last year, Johnson succeeded in winning settlements against Tyson, Cargill, JBS Foods and others for their role in an alleged wage suppression conspiracy in the poultry, beef, and pork meat processing industries.
The importance of the $885 million antitrust verdict this week against Takeda Pharmaceuticals Co. Ltd. had less to do with the nine-figure damages than ending private plaintiffs’ losing streak challenging deals delaying cheaper generics.
The Boston federal jury’s finding that Takeda improperly paid a competitor to delay it from bringing a generic version of its Amitiza constipation medication to market marked the first time a private plaintiff won at trial in a reverse-payment case.
Most challenges to deals between branded drug companies and generic makers either settle or are dismissed before reaching trial, with the more nuanced agreements sometimes making it to a jury. Three have been tried before a jury since the US Supreme Court put drugmakers on notice that the dealings could run afoul of antitrust laws. Until Monday, juries had rejected plaintiffs’ claims each time.
. . .
Generic Delayed
The breakthrough trial win is bound to fuel more cases challenging the dealmaking between brand drug companies and generic makers, antitrust attorneys said.
It shows that reverse-payment cases are worth bringing to trial despite worries about their complexities, Sharon Robertson of Cohen Milstein Sellers & Toll PLLC said. That could push companies to settle antitrust claims before cases reach jurors.
The result “sends a signal to the defense bar that juries are capable of understanding these issues and we can get a win on these cases,” Robertson said.
Jurors in the Takeda trial found the company’s deal with Par Pharmaceuticals included an illegal reverse-payment and declining-royalty provision that delayed the entry of the cheaper generic for about three years.
Minding the Details
Both sides of the drug industry are also likely to mine the trial evidence and transcripts to further develop a road map for how courts and juries might to handle reverse-payment deals like Takeda’s.
. . .
The deals have long been evolving, attorneys said. Shortly after the high court put reverse payments on the map, drug companies shifted from “bags of cash” deals to ones that included agreements for the branded drug maker not to produce their own generic, Robertson said.
The deals got more nuanced as plaintiffs brought new challenges, and that may be unlikely to change, she said.
“You are just seeing that shift over time,” Robertson said. “As you point to something and bring it to light, you see brand manufacturers find a new way to operate that has the same effect of suppressing generic competition.”
The Securities and Exchange Commission’s proposal for a semiannual reporting option has quickly provoked debate.
Earlier this month, SEC chairman Paul Atkins floated a proposed rule to allow public companies to file their financial statements twice a year instead of a quarterly basis, giving stakeholders such as accountants, auditors, investors and businesses a 60-day comment period to weigh in with their perspectives. President Trump has pushed for six-month reporting ever since his first term and reiterated his demands last year.
. . .
The proposal has a good chance of passing as there are three Republicans on the commission right now, and no Democrats. “At least two of the three have expressed a strong desire to move from quarterly to semiannual reporting, so I would be surprised if it did not go through in some shape or form,” said Laura Posner, a senior member of the law firm Cohen Milstein’s securities litigation and investor protection practice, who previously served as bureau chief for the New Jersey Bureau of Securities. “Quite frankly, I think their rulemaking proposal is likely pro forma, and I don’t think they will care what folks say, but I could be mistaken.”
She believes the proposal will spark objections from various groups. “Pretty consistently, most investors in the market think this is a very bad idea,” she added. “I don’t know that this SEC cares too much about that, because they seem to only be focused on what they think companies want. And I’m not even sure that this is something that most upstanding companies want either.”
She sees little demand from investors as well. “I think with most proposals that have been coming out of the SEC, or changes that are made without any investor input or rulemaking from this SEC, they are solutions in search of a problem,” said Posner. “I don’t think there is any clamoring by investors or corporations to move from quarterly reporting to semiannual reporting. I don’t think there’s any evidence to suggest that doing so is good for the market, or that it will lead to more offerings. Companies who are already reporting, first of all, are already public. In terms of companies not going public because they don’t want to have to do quarterly reporting, there is no evidence to suggest that’s why companies don’t go public.”
She also sees contradictions in the SEC’s approach. “It’s contrary to a lot of the moves that the SEC is making that will discourage companies from going public, including opening up private investment to retail investors,” said Posner. “I don’t even know what they’re trying to accomplish. But the economic evidence is quite clear that to the extent there is an issue with companies going public, it is not due to the relatively small compliance costs associated with being public or the threat of litigation, which is the other boogeyman that Chair Atkins likes to cite. It has to do with factors well beyond those two issues, so I think rule changes like this do not accomplish the purported goal of the chair.”
. . .
Competitive Advantages
The change could also eliminate a competitive advantage of the U.S. markets.
“This SEC is talking about problems with Chinese companies and concerns about the transparency of their filings, including on U.S. markets, yet somehow you think providing less transparency and less regulation is going to make you competitive with these markets that you find problematic,” said Posner. “I truly don’t understand the rationale, even if it were to make us more competitive, but I don’t think we are losing competitive pressure to Chinese markets. I think when you take away what makes the U.S. market the most attractive in the world, which is a disclosure-based regime with transparency, with the ability to sue when you are defrauded, when you have an active regulator that goes after companies who act inappropriately, that is what attracts investors to our market. Going to the lowest common denominator makes us just one of any other number of markets that investors are wary of investing in because of those heightened risks. I don’t see that as being a reasonable rationale for those kinds of changes.”
She also foresees problems for accountants and auditors.
“I think the problems that are going to befall investors are going to be problematic for the accountants too,” said Posner. “They’re going to have, in certain respects, less visibility into what’s going on at the company. They are going to be getting less information from the company. They are going to have to deal with greater volatility and more surprises. Right now, you have a situation in which a company has to, at least on a quarterly basis, provide some basic information to the market and to accountants, and instead, they’re going to be able to hold that for six months at a time. Quite frankly, if I were an auditor, that would make me much more concerned. It would make the work that I have to do for either the semi-annual report or the annual report much more difficult because there’s just so much more information that has to be understood and digested.”
The proposed changes aren’t likely to save on accounting or auditing fees either. “I don’t see this as saving money,” said Posner. “I think the accountants are going to be having to do the same work over long periods of time, because they’re not going to have the benefit of those quarterly [reports]. Even though they’re not providing an audit report with the quarterly reports they are still in there doing work each quarter, so I don’t see it as helpful for them. I actually think it will probably be more difficult for them. I don’t see it as costing the company any less, with regard to the accountants, than before. If anything, I could see it increasing costs.”
. . .
Insider Trading Risk
Posner sees issues potentially with the risk of insider trading, which she noted is not typically the focus of accountants. “To a certain extent, they do have certain responsibilities with regard to ensuring sufficient internal controls,” she added. “I don’t think a switch to semiannual reporting decreases insider trading. I think it increases insider trading, and therefore puts more onus on the accountants in terms of the compliance oversight there.”
Accountants might also be affected by the proposed rules allowing a company to switch back and forth between quarterly and semiannual reporting, and to make that election after they know their first-quarter results. Posner sees that as problematic for insider trading reasons and others as well.
“I imagine for an accountant or an audit firm trying to plan, having a company that can switch back and forth is problematic and makes it very difficult for them to do their work, to plan their audit, to ensure that they have time to get the information they need, to do a proper audit, and to ensure that they’re doing the correct comparisons year to year, quarter to quarter, particularly in industries that are very cyclical in nature.”
She noted that the retail industry, for example, usually receives many of its sales in the fourth quarter because of the holidays. “When you’re not necessarily comparing 2025 Q4 to 2026 Q4 but maybe you’re comparing a semiannual report to a quarterly report, that makes it very difficult, not only for investors, but for the auditor to do his job correctly.”
The U.S. Supreme Court on Monday turned away eyewear giant Luxottica’s bid for review of a Second Circuit decision that allowed certain claims in a proposed benefits class action to proceed in New York federal court rather than in arbitration.
The justices denied Luxottica’s petition for a writ of certiorari in an order list, declining to revisit the circuit court’s decision in February that kept some of former worker Janet Duke’s Employee Retirement Income Security Act case in court.
. . .
The proposed class of Luxottica retirees is represented by Radha (Rachana) Pathak of Stris & Maher LLP, and Michelle Yau, Dan Sutter, Kai Richter, and Ryan Wheeler of Cohen Milstein Sellers & Toll PLLC.
A Connecticut federal judge ordered Aetna to comply with a preliminary injunction requiring it to reconsider coverage denials affecting two transgender health plan participants who sought gender-affirming facial surgery, refusing to stay the insurer’s compliance obligations during its pending appeal in the proposed class action.
. . .
The health plan participants are represented by Christine E. Webber, Aniko R. Schwarcz, Harini Srinivasan and Elizabeth M. McDermott of Cohen Milstein Sellers & Toll PLLC, by Joseph J. Wardenski and Mack Karbon of Wardenski PC and by Gabriel Arkles, Ezra Cukor, Kelly Parry-Johnson, Sydney Duncan and Seran Gee of the Advocates for Trans Equality Education Fund.
The unprecedented lawsuit President Donald Trump brought against the Internal Revenue Service over the unauthorized disclosure of his tax returns years ago has led to an unprecedented arrangement that will make nearly $1.8 billion in taxpayer funds available to allies of the president who say they were unfairly investigated by the government in the past.
The announcement of the “Anti-Weaponization Fund” by the Justice Department on Monday immediately drew criticism from Democrats, public interest groups and former government officials who argued that Trump was using the levers of the government he controls to set up a vast piggybank for his supporters.
“It’s highly unusual. It seems to me that it’s a fairly thinly veiled attempt to funnel federal money to people that are sympathetic to the president’s cause and points of view without following the kind of usual procedures,” said retired Judge William Smith, who was appointed to the federal bench in Rhode Island by former President George W. Bush.
. . .
Is this similar to the Keepseagle case?
The Justice Department statement said there was precedent for the fund, pointing specifically to a compensation program that sprung out of an Obama-era settlement DOJ reached in a case accusing the Department of Agriculture of discrimination against tribal farmers and ranchers.
However, an attorney who was deeply involved in that case, known as Keepseagle v. Vilsack, said that the two circumstances were completely different.
A traditional settlement was approved in the class action case in 2011 and carried out under the oversight of a court. But when the settlement claims were paid, $380 million of the $680 million payout had remained unclaimed and there were no terms in the settlement allowing that money to go back to the government.
After extensive negotiations, the parties agreed to create a program dispersing grants to organizations that served Native American ranching and farming communities – the same communities that were in the original class of the lawsuit.
“That really is the critical issue. You have to serve the same community whose interests were at stake in the litigation that was brought,” said the lawyer who represented the Native Americans behind the case, Joseph Sellers.
A judge oversaw the plan to create that fund and even approved of the criteria it would use to determine who would be eligible for the grants.
“Even then, we had to satisfy the court that the funds were going to be dispersed in a way that served the same interests of the communities that brought the case,” Sellers told CNN.
The Trump-IRS deal contemplates no such judicial oversight of the new fund. In fact, his lawyers’ otherwise brief dismissal notice went out of its way to stress that the judge had no role to play now that he was dropping the case.
Ironically, the Keepseagle fund attracted harsh Republican criticism, and Trump’s first attorney general, Jeff Sessions, issued a memo that barred any DOJ settlement that “directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute.”
Under the current DOJ policy, any settlement that creates a payment program for parties not in a dispute “must have a strong connection to the underlying violation or violations of federal law at issue in the enforcement action.”