The Winter 2025 issue of the Shareholder Advocate, our quarterly securities litigation and investor protection newsletter, features:

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A Colorado federal judge on Friday certified an ERISA class action accusing a radiology company and its trustee of overcharging its employee stock ownership plan for purchase of company stock.

U.S. District Judge Charlotte N. Sweeney, in a 24-page order, granted a motion for class certification by former Envision Management Holding employees Robert Harrison and Grace Heath, who allege that their employee stock ownership plan, or ESOP, was up-charged more than $300 per share for nearly two-thirds of Envision stock.

Judge Sweeney found that the plaintiffs had met their burden of showing common questions among the proposed class, including whether the ESOP paid more than fair market value for company stock, whether each defendant breached fiduciary duties owed to the plan, and whether the plan suffered losses from those breaches, the order says.

The judge also determined that Harrison and Heath’s claims are typical of those of the proposed class members, which are based on the same underlying allegation that the ESOP paid an excessive price of $177 million for Envision stock, according to the order.

She certified a class of about 1,000 “participants in the Envision ESOP on or after September 1, 2017, who vested under the terms of the ESOP,” naming Harrison and Heath as class representatives, and appointing their attorneys at Cohen Milstein Sellers & Toll PLLC as class counsel.

“The court finds that Plaintiffs and their counsel will vigorously prosecute this action on behalf of the class,” Judge Sweeney said.

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Harrison and Heath are represented by Michelle C. Yau, Caroline E. Bressman and Ryan Wheeler of Cohen Milstein Sellers & Toll PLLC.

The deal would resolve a consolidated class-action over two cyberattacks, one of which cost the resort operator $100 million

A federal court gave preliminary approval to a $45 million settlement in a consolidated class-action lawsuit brought against MGM Resorts International for data breaches in 2019 and 2023.

Hackers broke into the resort operator’s systems twice, according to the suit filed in the U.S. District Court of Nevada, which combined two class-action lawsuits over separate breaches into one complaint. In July 2019, a hacker stole data including sensitive information such as driver’s license numbers, passport numbers and customer addresses.

Then in September 2023, MGM was attacked again, this time with ransomware, in an incident that disabled the resort operator’s key systems for several days— including those to hotel rooms—as well as taking gaming machines offline. The suit claims the hackers gained access to customer information during the attack, estimating that around 37 million people were affected by both attacks.

The suit alleges MGM failed to implement data-security practices, resulting in the breaches. MGM declined to comment.

The 2023 attack effectively shut down some of the biggest casinos on the Las Vegas Strip at the height of the summer season, costing MGM about $100 million. The company said in an October 2023 filing with the U.S. Securities and Exchange Commission it expects insurance to cover the costs.

Apple must face a potential class action alleging that Apple had a policy of paying men higher salaries than women for similar work.

On Tuesday, California Superior Court Judge Ethan P. Schulman filed an order that largely denies Apple’s motions to strike the class allegations and suspend several class claims. This allows what one lawyer representing women suing, Joseph Sellers, said was “a very important case that impacts thousands of current and former female Apple employees.”

Perhaps most significantly, Apple tried and failed to argue that pay disparities for individual female workers suing were “justified” and that their circumstances were not common to the 12,000 female employees who could be owed backpay if the class action is certified and Apple loses.

But Schulman agreed with employees suing that there was a “reasonable possibility” that thousands of women in Apple’s California-based engineering, AppleCare, and marketing divisions experienced similar unequal pay and discrimination as alleged in the complaint.

Schulman said that workers suing sufficiently alleged that Apple “has implemented an unlawful wage rate scheme that is generally applicable” to the class and results in Apple underpaying female workers, compared to their male counterparts.

According to workers suing, Apple has three policies that seemingly perpetuate and widen gender pay gaps. Allegedly, Apple relies upon “prior pay and pay expectations to set starting salaries,” uses performance evaluations that “reward” men and “penalize” women “for the same behaviors,” and uses “talent” reviews to pay men more than women “with similar levels of talent.”

Schulman warned that accepting Apple’s argument that evidence of pay disparity to particular employees did not reflect a common pattern or policy would seemingly “mean that a class action could never be certified” under California’s Equal Pay Act.

“Plaintiffs sufficiently allege that Defendant’s salary decisions are made in a centralized location pursuant to an employment policy which appears facially neutral but ‘has had the effect of perpetuating past pay disparities and paying women less than men performing substantially similar work,'” Schulman wrote.

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The plaintiffs in this case are represented by Outten & Golden, Cohen Milstein Sellers & Toll, and Altshuler Berzon. These law firms are known for brokering settlements with Goldman Sachs and Sterling Jewelers.

The plaintiff-side law firm Cohen Milstein Sellers & Toll PLLC snagged over $78 million last year in settlements for workers who’d faced discrimination on the job, including big payouts from both the U.S. Department of Homeland Security and the FBI, earning the firm a spot among the 2024 Law360 Employment Groups of the Year.

Cohen Milstein notched wins for classes of female employees at the two high-profile government agencies. They secured nearly $23 million for a class of FBI agent trainees who said they were tossed from its basic training program because of their sex; meanwhile a class of female U.S. Customs and Border Protection agents who said they were moved to light duty when they became pregnant was awarded $45 million.

Cohen Milstein partner Christine Webber, a member of the team that represented the class of 34 female FBI trainees who reached the settlement with the agency in September, said she was deeply impressed by that group of clients. She noted the bravery it took those who added their real names to the litigation, because decision-makers high in the government would know they had joined the case.

“This is a group of named plaintiffs that’s just among the most badass group of women I have had the privilege to represent,” she said. “They’re a very, very impressive group.”

The women in the class passed every objective test required to become an FBI agent: physical fitness, academics and firearms assessments. But all were dismissed at the stage of the so-called “suitability evaluation,” a subjective assessment conducted prior to graduation.

The explanations the women were given were “really inconsistent with how men who engaged in similar behaviors were treated,” Webber said.

For example, a male trainee who shot the wrong target during a practice exercise would be pulled aside and coached. Women who made the same mistake would be told they didn’t “have what it takes,” Webber said.

When the case was filed in 2019, it caught the attention of members of Congress who pushed for a separate investigation by the U.S. Department of Justice inspector general. That report confirmed the women’s allegations, Webber said.

“Basically, women were about 25% of the trainees and 50% of those who were dismissed on these suitability notations,” she said.

The $22.6 million settlement works out to an average of $570,000 per class member, which Webber explained is a reflection of the missed career opportunity, including the FBI’s generous pension.

The settlement also allows the class members to be reinstated as long as they pass basic training, though Webber said it’s too soon to say how many will go that route.

“We are hoping that some of the class members … will become FBI agents as a result of the settlement, and think that they will be bringing both great talent as agents, but also a great perspective for how the FBI needs to treat women better and therefore improving the agency,” Webber said.

Meanwhile, over at DHS’ Customs and Border Protection, Cohen Milstein scored a $45 million deal in August in a class action brought on behalf of 1,000 officers and agriculture specialists. The workers said they were shunted to light duty when they became pregnant, in violation of the Pregnancy Discrimination Act. Their suit was filed as an administrative case at the U.S. Equal Employment Opportunity Commission in 2016.

“A number of them were referred to as liabilities, that this pregnancy is a liability. And it’s had a significant impact on their career paths, on their leave, on some of their opportunities to earn overtime, and other things that have materially compromised their earnings as well as making them feel like pariahs,” said Cohen Milstein partner Joseph Sellers, who worked on both the CBP and FBI cases.

The U.S. Supreme Court declined Monday to assess the certification of an enormous class of businesses that social media colossus Meta Platforms allegedly defrauded by inflating the reach of Facebook and Instagram advertisements, upping the odds of a major payout in the closely watched case.

In an order list, the high court said it won’t review a Ninth Circuit opinion that allowed a supersize cluster of companies to seek damages in what Meta has called “one of the largest fraud classes in the Ninth Circuit’s history, encompassing millions of diverse advertisers.”

Some advertisers contend Meta scammed them with bogus boasts about the “potential reach” of advertisements. Meta purported to quantify that reach by citing the number of individual users in an ad’s target audience, but the number it cited actually reflected accounts — a much larger category that includes duplicate or phony profiles, such as those for automated bots.

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The plaintiffs are represented by Cohen Milstein Sellers & Toll PLLC and the Law Offices of Charles Reichmann.

A Colorado federal judge on Wednesday certified a nationwide class of stockholders in a securities suit alleging a senior health care company made misleading statements in an initial public offering that later caused stock prices to tank after a government audit exposed the falsehoods.

Three public pension funds based in Texas and Indiana have accused InnovAge Holding Corp. and parties behind its March 2021 IPO of falsely claiming its business providing seniors with comprehensive health care grew because of an innovative business model, when a government audit and media reporting later showed that growth came at the expense of senior citizens.

A September 2024 amended complaint — brought against InnovAge, its board, private equity firms that funded the IPO and the deal’s underwriters — argued InnovAge’s stock price for the IPO was set based on those misleading statements, only for prices to later plummet after the federal government suspended enrollment at one of the company’s centers.

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The plaintiffs are represented by Julie G. Reiser, Molly J. Brown, Jan E. Messerschmidt, Brendan R. Schneiderman, Carol V. Gilden and Manuel J. Dominguez of Cohen Milstein Sellers & Toll PLLC and Cecil E. Morris and Adrian P. Castro of Fairfield & Woods PC.

The District of Columbia will get another chance to tweak its claims against landlord AvalonBay Communities and see if the changes are enough to prop up allegations that it has been using the property management platform RealPage to fix the price of rentals.

AvalonBay was let out of the litigation in May, but Superior Court Judge Todd E. Edelman handed down an order before the holidays that switched the dismissal from one with prejudice to one without so that D.C. could amend its claims.

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D.C. is represented by Adam Gitlin and Amanda Hamilton of the Office of the Attorney General for the District of Columbia’s Public Advocacy Division and Emmy L. Levens, Robert A. Braun and Aaron J. Marks of Cohen Milstein Sellers & Toll PLLC.

The Second Circuit knocked down Argent Trust Co.’s bid to arbitrate a case alleging the wealth management company sold inflated shares to a barbecue chain’s employee stock ownership plan, after ruling in a similar case that identical arbitration contract language wasn’t enforceable.

A three-judge panel Friday granted Jamaal Lloyd and Anastasia Jenkins’ unopposed motion for summary affirmance in the appeal brought by Argent, which challenged a lower court’s order denying its request to compel arbitration in the Employee Retirement Income Security Act proposed class action. The ESOP participants said the Second Circuit’s recent rulings in Dejesus Cedeno v. Argent Trust Co.   foreclosed the wealth management company’s appeal in their case, and the panel agreed in a one-page order.

“Plaintiffs are seeking the precise remedies that Cedeno was pursuing, and the arbitration clause in this case has the exact same language that was invalidated in Cedeno,” Lloyd and Jenkins said in their September motion. “There is simply no credible argument that the effective vindication holding in Cedeno does not apply to this case.”

In May, the Second Circuit held in Cedeno that Argent couldn’t arbitrate a case alleging it allowed an ESOP to be overcharged in a company stock sale while acting as the plan’s trustee. The court voided the arbitration agreement at issue because it prevented plan participants from seeking planwide remedies offered under ERISA.

The court then rejected Argent’s bid for an en banc rehearing of the decision in July. Argent sought high court review of the case, but its motion for certiorari was denied in November.

Lloyd and Jenkins also fought the arbitration of their suit by arguing that their arbitration agreement was invalid because it prevented them from pursuing rights available under ERISA — namely, by blocking representative actions and preventing employees from removing a fiduciary from the plan. A district judge denied the company’s arbitration bid in December 2022.

Argent appealed the ruling, but in their September motion, Lloyd and Jenkins said the resolution of Cedeno shuttered Argent’s interlocutory appeal. The court in Cedeno “invalidated a materially indistinguishable arbitration clause” compared with the contract at issue in their dispute, they said.

In Cedeno, the Second Circuit found the arbitration agreement couldn’t stand because it only allowed Cedeno to recover losses that he faced individually rather than seek planwide remedies. Lloyd and Jenkins said that they sought the same remedies as Cedeno and that the language at issue in their arbitration clause with Argent was identical to the language the Second Circuit invalidated in Cedeno’s contract.

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Lloyd and Jenkins are represented by Rachana Pathak, Peter K. Stris, John Stokes and Bridget C. Asay of Stris & Maher LLP and by Ryan Wheeler, Michelle C. Yau and Kai H. Richter of Cohen Milstein Sellers & Toll PLLC.

The U.S. Supreme Court will hear Cornell University workers’ bid to revive a retirement plan lawsuit, the Ninth Circuit will weigh whether a nicotine surcharge dispute belongs in arbitration, and the Second Circuit will hear Yale University defend a win in a fight over retirement plan fees and investments.

Here are five cases benefits lawyers should have on their radar in the new year.

Cornell Workers Push High Court to Reinstate Their Case

The Supreme Court is expected to weigh in on the pleading standards for workers alleging retirement plan mismanagement, after justices in October granted Cornell University workers’ petition for review of a Second Circuit decision that ended their Employee Retirement Income Security Act suit.

Justices have scheduled arguments in the case for Jan. 22 in the appeal from Cornell workers, who challenged a November 2023 Second Circuit panel’s decision to affirm a summary judgment win for the university on claims recordkeeping fees were excessive.

The high court also approved the federal government’s request to argue as amicus on behalf of the university retirement plan participants who petitioned for review in the case. The government filed an amicus brief in support of petitioners earlier in December.

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Michelle Yau, who chairs the employee benefits and ERISA practice at Cohen Milstein Sellers & Toll PLLC, said she’s also keeping a close eye on the Cornell case.

Yau said “there’s a lot of confusion” among the circuit courts about what’s required to plead a prohibited transaction claim under ERISA when service providers are involved.

Yau also took note of the narrow question that justices are taking up, which is focused on the pleading standards for Section 406(a)(1)(c) and not other types of prohibited transaction claims involving parties in interest to a plan, such as company insiders, for example.

“I think it’s important to put in context all the stuff that’s not going to be disturbed” by the case, Yau said.

The case is Casey Cunningham et al. v. Cornell University et al., case number 23-1007, in the U.S. Supreme Court.