A split Fourth Circuit panel Friday revived a putative class action accusing major shipbuilders and naval engineering consultants of an illegal “no-poach” conspiracy, with the majority holding that just because the alleged conspirators never formalized their purported agreements in writing, it doesn’t mean the conspiracy can’t be unlawful.
The 2-1 panel decision reversed a lower court ruling from last year finding that the plaintiffs’ fraudulent concealment argument for tolling the four-year Sherman Act statute of limitations didn’t pass muster. On the contrary, the circuit majority held that the two naval engineers who brought the case had adequately pled that they were kept in the dark about the alleged conspiracy within the statutory period because the employers were deliberately trying to conceal it.
. . .
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.
Despite a growing body of case law laying out a blueprint for determining whether incarcerated workers are employees — which would legally entitle them to minimum wage and other protections — there is no definitive way to classify workers behind bars.
Disputes over classification are common in employment law, where the question is often whether a worker is an employee or an independent contractor. Employees qualify for more rights and protections under the federal Fair Labor Standards Act and state laws, including minimum wage, overtime and meal breaks. But determining whether an incarcerated worker is an employee is a relatively newer challenge, and courts have a different set of facts and questions to consider.
Generally, at the heart of courts’ analyses mulling incarcerated workers’ classification under the FLSA and state wage laws is conviction status and the work’s purpose and location. But other questions are still open, including whether the facility’s ownership as public or private carries any weight.
. . .
Here, Law360 looks at the patchwork of guidelines courts have laid out when considering incarcerated workers’ employment classification.
Different Conviction Status, Different Classification
There is one factor that courts have focused on more than others when determining if an incarcerated worker has rights under the FLSA: conviction status.
D. Michael Hancock of Cohen Milstein Sellers & Toll PLLC, who represented a group of U.S. Immigration and Customs Enforcement detainees in a wage case that landed in the Fourth Circuit, explained that people convicted of a crime who work within a prison’s walls are considered exempt from wage laws.
That’s because “the work that they perform is considered to be a form of punishment that is permissible” under the 13th Amendment of the U.S. Constitution, Hancock said.
The 13th Amendment, which abolished slavery after the Civil War, includes a so-called exception clause that allows for slavery and involuntary servitude as a punishment for a crime.
Hancock explained that courts have looked at civil detainees who have not been convicted of a crime, including ICE detainees, through a different lens and have taken a textual approach to the FLSA and state laws.
In a case in which Washington state sued private-prison colossus GEO Group and snagged a $23.2 million win for ICE detainees who received $1 per day for their service in a voluntary work program, the Ninth Circuit ruled that state minimum wage law didn’t have an exemption for “residents, inmates or patients in federally operated institutions.”
In a statement to Law360, GEO Group disputed the idea that its voluntary work program would lead to considering the detainees as employees, saying that “participation in the voluntary work program is, as the name states — strictly voluntary.”
“This program has been in place for decades and became part of the ICE performance-based standards under President Obama’s administration,” GEO said. “The wage rates associated with this federally mandated program are set by the United States Congress. As a service provider to the federal government, GEO is required to abide by these federally mandated standards and congressionally established guidelines.”
Courts are tackling cases similarly under the FLSA, which Hancock said is “riddled with specific exemptions” but doesn’t have a carveout “that says you are a civil detainee, therefore you don’t need to be paid.”
“So I think we’d lose the humanity sometimes that these are people. They’ve been convicted of nothing, and so they deserve the same kind of dignity and protection that we tend to almost every other worker in this country and need their work to be respected and to be properly acknowledged and paid,” Hancock said.
However, in one specific example involving pretrial detainees working at a California county jail, both the Ninth Circuit and the California Supreme Court added an extra wrinkle in the state when they ruled that the workers weren’t entitled to minimum wage and overtime because Penal Code Section 4019.3 applied.
Under that provision, the county was allowed to pay inmates a maximum of $2 for eight hours of labor in jail, and it should be interpreted broadly regardless of conviction status, the California justices said.
Work Location and Purpose Could Move the Needle
Two other factors courts look at to determine detainees’ classification is where the work is performed, and for what reason, Hancock said.
The Fourth Circuit, for instance, ruled in Scott that individuals in county detention could fall under the FLSA based on the purpose of their work. It also highlighted the fact that the work was done “outside the prison walls,” raising “the risk of unfair competition to other businesses.”
A Florida state appellate court on Wednesday reinstated a proposed class action alleging negligence against the city of Miramar and a consultant over improperly treated tap water that led to damaged pipes in homes, saying the complaint sufficiently claimed the city assumed a duty to make sure water wasn’t corrosive.
A three-judge Fourth District Court of Appeal panel issued a per curiam opinion, reversing dismissal of residents’ claims alleging negligence against Miramar and consultant Kimley-Horn & Associates Inc. and remanding the case to the Seventeenth Judicial Circuit.
Additionally, the panel reversed the dismissal of a professional malpractice claim against Kimley-Horn, but it affirmed the dismissal of a negligent misrepresentation claim against the consultant, saying the residents “insufficiently alleged justifiable reliance on material misrepresentations.” The panel also affirmed the dismissal of breach of implied warranty and strict liability claims against Miramar.
. . .
Leslie Kroeger of Cohen Milstein Sellers & Toll PLLC, representing the residents, said in a prepared statement emailed to Law360 on Wednesday that the panel’s ruling “represents significant progress for Miramar residents who have suffered substantial plumbing and property damage.”
“Many homeowners faced expenses in the tens of thousands of dollars, with some forced to completely re-pipe their homes,” Kroeger said. “They shouldn’t bear the financial burden of the city’s failure to properly treat their water supply.”
Reached by email on Wednesday, Kroeger told Law360 she expects the case to be re-assigned to another judge in the lower court’s complex division and proceed to a status conference to determine a case schedule and possible trial date.
. . .
The residents are represented by Jeffrey V. Mansell and Bard D. Rockenbach of Burlington & Rockenbach PA, Leslie M. Kroeger and Diana L. Martin of Cohen Milstein Sellers & Toll PLLC, and J. Eric Romano of Romano Law Group.
Veterans Guardian says it’s fighting to give veterans a choice. Critics say they’re guardians of greed.
It started in 2017 with a group of friends and colleagues—the first 40 clients whom U.S. Army veterans Scott Greenblatt and Bill Taylor signed up to help.
They had come home from combat zones weary and weakened by illness and injury, with a promise of monthly disability payments from the country they served. But first, they had to navigate the lumbering bureaucracy of the Department of Veterans Affairs.
Soon, those 40 veterans grew to 275 a month. Then 275 soared to 500. Last year, Taylor and Greenblatt’s company Veterans Guardian assisted about 30,000 veterans with benefits claims, according to Taylor. “We have your back,” the company’s website says. “Together we can uncover all the benefits you deserve.”
The one problem with their success story: Veterans Guardian’s business model runs afoul of the law, say lawmakers and attorneys general from across the country. But nobody has been able to stop them.
With no accreditation, the company is charging veterans thousands of dollars for guidance that veterans service organizations and other nonprofits advise vets on for free.
A whistleblower lawsuit from one of Veterans Guardian’s former employees claims the firm’s business practices are “permeated with fraud and deceit” and cheating the federal government out of millions of dollars. A lawsuit filed by veterans alleges the company “preys on disabled veterans by unfairly and deceptively taking tens of millions of dollars of their disability benefits in violation of federal law.”
. . .
A Former Employee Blows the Whistle
Leslie Carico had been working as a document control specialist at Veterans Guardian for about five months in May 2019 when she began discussing concerns with a coworker. It wasn’t long before “disloyalty” cost her the job, according to a whistleblower lawsuit she filed in 2020.
Her dramatic claims emerged last year when the U.S. District Court for the Middle District of North Carolina unsealed the case. In a complaint that spans more than 60 pages, she detailed how Veterans Guardian “hijacks the application process, wresting control of it from the veteran” with a “singular focus”: a 100% disability rating for the maximum VA benefit possible so the company can charge the largest commission.
Among the alleged tactics, according to the lawsuit:
- Claims strategists with no medical background interviewed veterans and quickly assessed which health issues should be listed on their forms.
- The company referred veterans to the same psychologist for remote exams— sometimes conducted by the psychologist’s family members—and mental health forms were auto-populated with identical checkmarks.
- Employees changed scores on depression self-evaluations if they felt the score was too low, sometimes without the veterans’ knowledge.
- Applicants were coached to look “tired and shabby” for appointments with VA medical examiners. They were advised not to shave, told to use a cane or wheelchair if they had one, and to use buzz words such as “depressed,” “sad,” and “no motivation.”
- Veterans Guardian employees routinely tacked on secondary conditions like erectile dysfunction and headaches to a veteran’s diagnosis if resubmitting an application was necessary.
- Employees were instructed to tell prospective customers that VA “could not be trusted to deal with veterans fairly. Misrepresentations may have to be made.”
The reason that the company went to these lengths, Carico’s lawsuit said, was simple: money. The company charged a one-time fee of five times the amount of a veteran’s monthly disability benefit increase. For a veteran going from a 0 to 100% rating, this could amount to up to $4,500 a month—a payout of more than $22,000 for Veterans Guardian. The company charged nothing to a veteran who received no benefit rating increase—but this was rare. In interviews with The War Horse, three former employees said the company “cherry-picked” who to help, turning away veterans who did not have a strong case.
Carico’s lawyers did not make her available for an interview with The War Horse. But two current and four former Veterans Guardian employees said in interviews they had seen many of Carico’s claims firsthand.
. . .
In an emailed statement to The War Horse, Carico’s lawyers called the allegation baseless, “designed to discredit a whistleblower revealing serious fraud,” and “a familiar tactic used against women who speak truth to power.”
Cohen Milstein Sellers & Toll PLLC and Lieff Cabraser Heimann & Bernstein LLP will represent a proposed class of investors in a suit alleging Jack Dorsey’s fintech company Block Inc. created a “haven for criminal and illicit activities” on its Cash App and Square payment platforms despite touting its anti-money laundering protocols.
In an order filed Wednesday in California federal court, U.S. District Judge Noël Wise appointed the two firms lead counsel in the putative investor class action, finding that their clients, a group of New York City public sector pension funds, had made “made a reasonable choice of counsel.”
Judge Wise said Wednesday she’d initially questioned the need for two firms to co-lead the litigation, but later determined that in this matter, the choice was “sensible” in part because the firms have a track record of working together to represent the New York City funds.
Among other things, the judge referenced the firms’ argument that having counsel based on the East and West coasts would facilitate better communication with the members of a potentially nationwide class. Judge Wise also noted the firms had been selected by their clients in a bidding process and had agreed to “an extremely competitive single rate” for their work on the case.
The investor suit, which launched in January, alleges that in its public statements, Block claimed its anti-money laundering program was designed to keep money laundering, terrorist financing and other illegal activity off the Cash App and Square platforms.
. . .
The investors are represented by Lieff Cabraser Heimann & Bernstein LLP and Cohen Milstein Sellers & Toll PLLC.
The Spring 2025 issue of the Shareholder Advocate, our quarterly securities litigation and investor protection newsletter, features:
- Carol V. Gilden and Benjamin F. Jackson on the Bayer securities litigation settlement
- Molly J. Bowen and Richard E. Lorant on changes to the Delaware General Corporation Law
- Richard A. Speirs on Special Litigation Committees in shareholder derivative litigation
- Daniel S. Sommers on the Private Securities Litigation Reform Act
- Suzanne M. Dugan’s interview with Andrew Roth, CEO of Colorado Public Employees’ Retirement Association
The professors allege that the Trump administration violated the First Amendment and federal law when it threatened to use funding cuts as a cudgel to coerce Harvard University to restrict speech and allow government control over teaching and learning
CAMBRIDGE, MASS. — The Harvard Faculty Chapter of the American Association of University Professors (AAUP) and the national AAUP have filed a lawsuit seeking to block the Trump administration from demanding that Harvard University restrict speech and restructure its core operations or else face the cancellation of $8.7 billion in federal funding for the university and its affiliated hospitals. With Cohen Milstein Sellers & Toll PLLC and Selendy Gay PLLC as counsel, the lawsuit alleges that the administration’s demands violate the Constitution without any federal law authorizing their actions.
“The First Amendment does not permit government officials to use the power of their office to silence critics and suppress speech they don’t like,” said Andrew Manuel Crespo, Morris Wasserstein Professor of Law at Harvard University and general counsel of the AAUPHarvard Faculty Chapter. “Harvard faculty have the constitutional right to speak, teach, and conduct research without fearing that the government will retaliate against their viewpoints by canceling grants.”
In March 2025, the chair of President Trump’s Joint Task Force to Combat Anti-Semitism announced on Fox News that “the academic system in this country has been hijacked by the left, has been hijacked by the Marxists. They have controlled the mindset of our young people . . . and we have to put an end to it.” He further stated, “We’re going to bankrupt these universities. We’re going to take away every single federal dollar.” On March 31, his task force announced a “comprehensive review” of more than $8.7 billion in federal contracts and grants at Harvard University and its affiliates.
Three days later, the task force issued a demand letter outlining “immediate next steps that we regard as necessary for Harvard University’s continued financial relationship with the United States government.” The demands included new speech restrictions on campus, the cancellation of all diversity, equity, and inclusion programs, and a commitment to “full cooperation” with the Department of Homeland Security. Far beyond measures to combat antisemitism on campus, they seek to force the private university to transform its governance to comply with the administration’s agenda.
Last night’s filing argues that the task force and its demands are part of a pretextual effort to to chill universities and their faculty from engaging in any speech, teaching, and research that President Trump disfavors. The professors filing the suit have asked for an immediate temporary restraining order blocking the Trump administration from cutting off any funding to Harvard University.
“No law in this country permits President Trump to suspend billions of dollars from universities like Penn, Princeton, or Harvard simply because he doesn’t like their policies on transgender athletes, their research on climate change, or the constitutionally protected speech of their students and faculty,” said Nikolas Bowie, Louis D. Brandeis of Law at Harvard University and the secretary-treasurer of the AAUP-Harvard Faculty Chapter. “Eliminating discrimination and protecting all students is important. But Trump is defying the Civil Rights Act, terrifying students, and illegally holding hostage grants for hospitals and scientific research so he can accomplish his real goal of punishing academics for our politics.”
“The research and teaching of Harvard faculty have already been chilled by the Trump administration’s attempt to coerce the university into changing its curriculum and governing structure,” said Kirsten Weld, Professor of History at Harvard University and the president of AAUP-Harvard Faculty Chapter. “If Trump can threaten to withhold billions of dollars from our colleagues unless we stop teaching about diversity and inclusion, he can make the same threat to try and stop us from teaching about science, his critics, or anything else. An academic community cannot freely exist with such a threat hanging over us.”
“The Trump administration’s not so veiled attempt to destroy the freedom to speak, debate, and research on campuses is an attack on democracy and economic mobility,” said Todd Wolfson, president of the American Association of University Professors. “The harms will be so irreparable that they will last generations. Where university administrators fail to protect our sector, faculty will stand up and fight.”
“Our students and faculty members across the nation are terrified. If the administration’s lawless and unconstitutional attempts to control speech and governance at Harvard are allowed to proceed, then any one of our institutions could be next,” said Veena Dubal, AAUP General Counsel. “The impact would be catastrophic – fundamentally crushing freedom of speech and academic freedom as hallowed ideals in our democracy.”
Read last night’s motion for a temporary restraining order.
###
The lawsuit is a joint effort of the American Association of University Professors (AAUP) and the AAUP Harvard Faculty Chapter.
About the American Association of University Professors: The mission of the American Association of University Professors (AAUP) is to advance academic freedom and shared governance; to define fundamental professional values and standards for higher education; to promote the economic security of faculty, academic professionals, graduate students, postdoctoral fellows, and all those engaged in teaching and research in higher education; to help the higher education community organize to make our goals a reality; and to ensure higher education’s contribution to the common good. Founded in 1915, the AAUP has helped to shape American higher education by developing the standards and procedures that maintain quality in education and academic freedom in this country’s colleges and universities.
The parent company of Silvergate Bank has asked a Delaware bankruptcy judge to approve a new deal to settle a securities class action for $37.5 million and resolve a slew of indemnification issues in its Chapter 11, a resolution that the debtor said would save it potentially millions of dollars in legal fees.
In a motion filed Tuesday, Silvergate Capital Corp. urged the court to greenlight a two-pronged global settlement addressing the securities lawsuit and its obligations to indemnify executives and others.
The deal calls for Silvergate to pay $37.5 million to plaintiffs in a class action alleging the collapsed cryptocurrency-focused bank failed to vet its customers, including FTX, and misrepresented its commitment to regulatory compliance before a run on the bank in late 2022. About $27.5 million of the settlement amount would be paid using Silvergate’s remaining directors and officers insurance coverage.
. . .
The securities litigation class is represented by Carol V. Gilden, Steven J. Toll, S. Douglas Bunch, Christina Saler, Jan Messerschmidt, and Brendan Schneiderman of Cohen Milstein Sellers & Toll PLLC, and Jonathan D. Uslaner, Lauren M. Cruz and John Rizio-Hamilton of Bernstein Litowitz Berger & Grossmann LLP.
RealPage Inc. and 10 of New Jersey’s largest landlords are colluding to raise rents in violation of state and federal antitrust and consumer protection laws, forcing Garden State residents to overpay for housing, Attorney General Matt Platkin claimed Wednesday in a federal lawsuit.
Platkin alleges the defendants conspired to set rents in New Jersey using the company’s algorithms, exchanging private data to align prices and stifle competition. Filed under seal in New Jersey federal court, the complaint charges violations of the Sherman Act, the New Jersey Antitrust Act and the New Jersey Consumer Fraud Act.
“The defendants in this case unlawfully lined their pockets at the expense of New Jersey renters who struggled to pay the increasingly unlivable price levels imposed by this cartel,” Platkin said in a news conference Wednesday. “Today we’re holding them accountable for unlawful conduct that fueled the state’s affordable housing crisis and deprived New Jerseyans of their fundamental right to shelter.”
Garden State average rents are among the highest in the nation and New Jersey has a shortage of more than 200,000 affordable rental homes, the attorney general said. He added that landlords named in the complaint control a significant portion of rental properties.
“This case is about restoring competition to New Jersey’s multifamily housing market and state residents’ right to competitive rental rates,” Platkin and the acting director of the Division of Consumer Affairs, Jeremy E. Hollander, said in the 78-page complaint.
In many cases, landlords did not tell potential tenants about their use of the pricing software, the lawsuit said. In other instances, landlords told lease applicants that the software was used to calculate the market rate of the units but did not reveal that the software was intended to maximize rents.
. . .
Representing the state of New Jersey are Attorney General Matthew J. Platkin, Assistant Attorney General Brian F. McDonough, Deputy Attorneys General David Reichenberg, Jesse J. Sierant, Leslie Prentice and Blair Gerold, and Brent Johnson, Emmy L. Levens, Robert A. Braun and Aaron J. Marks of Cohen Milstein Sellers & Toll PLLC.
A proposed class of nearly 2,000 Intel Corp. retirees urged a California federal judge on Monday to certify the retirees’ Employee Retirement Income Security Act claims alleging Intel relied on outdated mortality assumptions when it converted their single life annuities to a joint and survivor design, resulting in lower payouts.
Although lead plaintiff Gregg Berkeley initially filed a redacted version of the class certification motion in January, he filed an unredacted motion Monday. The unredacted motion asked U.S. District Judge Edward J. Davila to certify a class of plan participants and their beneficiaries who are receiving a joint and survivor annuity that is less than the value of the single life annuity using the relevant interest rates and mortality tables as required under ERISA with an annual stability and August look-back period.
The motion also asked Judge Davila to appoint Berkeley as class representative and Cohen Milstein Sellers & Toll PLLC and University of San Diego Law School professor Shaun Martin as class counsel.
The certification fight is the latest development in a lawsuit Berkeley filed in January 2023, alleging Intel and the plan’s administrative committee violated multiple ERISA provisions by underpaying pension benefits to married retirees under the Intel Minimum Pension Plan.
Under ERISA, joint and survivor annuities for married retirees must be “actuarially equivalent” to single life annuities paid to single retirees, and therefore, pension plan administrators must use certain “reasonable actuarial factors” to convert SLA payments to JSA payments, according to the lawsuit.
. . .
Berkeley is represented by Michelle C. Yau, Daniel R. Sutter, Caroline E. Bressman and Allison C. Pienta of Cohen Milstein Sellers & Toll PLLC and by Shaun P. Martin.