Federal courts are poised in the new year to tackle big questions spurred by the U.S. Supreme Court’s April opinion easing the requirements for bringing workplace bias claims, including which anti-discrimination laws and job actions are subject to the new standard, and how the decision affects workplace diversity programs.
In Muldrow v. St. Louis, the justices unanimously disavowed the lofty legal hurdles that some lower courts have imposed to block workplace discrimination cases over employment actions considered to have less serious consequences for the worker. The high court held that employees need not show they faced “significant” harm from a workplace action to bring a discrimination lawsuit under Title VII, but rather “some harm.”
As the case arose in the context of Title VII of the Civil Rights Act, experts said it’s not yet clear if the new lowered harm threshold can be invoked by employees bringing claims under other anti-discrimination laws, like the Americans with Disabilities Act.
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Harini Srinivasan, an attorney at worker-side firm Cohen Milstein Sellers & Toll PLLC who co-chairs the firm’s hiring and diversity committee, said the outcome of Scheer’s battle will have significant implications for Muldrow.
“How things play out with Scheer will be a really important spotlight on Muldrow,” she said.
A decision backing the EEOC’s position would make the Tenth Circuit at least the third federal appellate court to find that ADA plaintiffs can invoke Muldrow. The First and Eleventh circuits have already said they can.
This extension may also create support for the argument that the justices’ revamped harm test stretches to other laws, including the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866, a federal law prohibiting bias based on race, color and ethnicity in making and enforcing contracts.
Srinivasan said the ADA-focused dispute could serve as a kind of gateway to other discussions, as she said Title VII updates often are initially employed in the disability discrimination context before they’re applied to other laws.
“That has always tended to be the order of progression when there have been meaningful changes to Title VII,” Srinivasan said. “Practitioners will be watching that to understand how to champion Muldrow’s expansion to these other statutes.”
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Muldrow’s Impact on DEI
Another topic of debate is whether Muldrow fortifies the current attacks on workplace DEI programs.
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However, expert opinions differ. Cohen Milstein’s Srinivasan told Law360 that Muldrow isn’t the “silver bullet” against DEI that some have made it out to be.
“In DEI programs, by their nature, they don’t single out individuals or create disadvantages,” Srinivasan said. “When done well, they work to expand opportunities and level the playing field.”
What is the best way for more than 100 casinos that signed similar arbitration contracts to litigate their antitrust claims against a company that sells automated card-shuffling machines?
Is it for each of the casinos to arbitrate individually against the company, Light & Wonder (LNW.O), in more than 100 separate proceedings before an array of arbitrators who might well reach contradictory conclusions about legal and evidentiary issues?
Or is it for all of the more than 100 casinos to move forward as a class in a single arbitration before one arbitrator who will decide the fate of their theory that Light & Wonder engaged in sham patent litigation to monopolize the market for its machines?
The obvious answer, according to American Arbitration Association arbitrator John Wilkinson, is for the casinos to proceed as a class. In a Dec. 9 ruling made public on Tuesday, Wilkinson certified the casinos as an arbitration class, rejecting Light & Wonder’s arguments that their individual arbitration contracts are too dissimilar to allow the class to be certified.
“This landmark decision certifies what we believe to be the first-ever arbitration antitrust class, said Michael Eisenkraft, counsel for Mohawk Gaming Enterprises — a result that illustrates the ability of arbitrations to handle the most complex matters. This thorough ruling also denied the defendant’s motion for summary judgment. We look forward to advancing this case through the arbitration process.”
Progress Software and a group of more than 100 businesses, healthcare providers and government agencies can’t end a putative class action over a data breach tied to Progress’ MOVEIt file transfer tool, a Massachusetts federal judge said Thursday.
During a status hearing in the massive multidistrict litigation, U.S. District Judge Allison Burroughs denied an omnibus motion to dismiss filed on behalf of Progress, federal contractor Maximus Health Services and others, concluding that most of the plaintiffs had plausibly alleged they have suffered harm as a result of the breach, which involved millions of records obtained by Russian hackers last year.
The hundreds of pending complaints came following a May and June 2023 data breach by Russian hackers who then used it as leverage to extort payments from some of the entities. Some of the data has since been released on the “dark web,” according to the decision.
The plaintiffs are represented by Kristen A. Johnson of Hagens Berman Sobol Shapiro LLP, E. Michelle Drake of Berger Montague PC, Gary F. Lynch of Lynch Carpenter LLP, Douglas J. McNamara of Cohen Milstein Sellers & Toll PLLC, Karen H. Riebel of Lockridge Grindal Nauen PLLP and Charles E. Schaffer of Levin Sedran & Berman LLP.
A New York federal judge on Friday overruled objections from Bank of America unit Merrill Lynch to certify a class of investors, with a slightly extended class period, in a suit alleging the financial institution colluded with other major banks to avoid modernizing the stock loan market.
U.S. District Judge Katherine Polk Failla issued an opinion and order adopting a report and recommendation published by a magistrate judge in 2022 stating that the proposed class should be certified. However, Judge Failla extended the end of the class period from what the magistrate judge had recommended.
According to Friday’s order, U.S. Magistrate Judge Sarah L. Cave recommended that certification be granted to a class period that runs from Jan. 1, 2012, until Aug. 16, 2017, when the initial complaint in the suit was filed.
Judge Failla, on Friday, extended the end of the class period to Nov. 17, 2017, the date on which the amended, operative complaint was filed, saying the evidence presented by investors runs through that period.
The investor plaintiffs are represented by Quinn Emanuel Urquhart & Sullivan LLP and Cohen Milstein Sellers & Toll PLLC.
A New York federal judge agreed to revive in-court proceedings on a Luxottica ex-worker’s claims in a federal benefits lawsuit that she made on behalf of her pension plan, but held firm on the court’s earlier decision to compel individual arbitration of other claims.
In a 50-page opinion and order docketed Wednesday, U.S. District Judge Nusrat J. Choudhury partially granted Janet Duke’s motion for reconsideration of a 2023 order that had granted a motion to dismiss and to compel arbitration of her Employee Retirement Income Security Act suit.
Duke first sued Luxottica U.S. Holdings Corp., subsidiary Oakley Inc. and Luxottica’s pension plan and investment committee in 2021. Duke said the companies’ use of outdated mortality tables and an incorrect interest rate lowered pension plan participants’ joint-and-survivor annuity benefits below what they would have received if they elected a single-life annuity. Joint-and-survivor annuities provide an individual and their spouse benefits for life in exchange for lower payments, but ERISA requires that those pension plan benefits be actuarially equivalent.
Judge Choudhury said an arbitration provision in a dispute resolution agreement that Duke signed in 2015 was unenforceable as to claims brought on behalf of her pension plan. That’s because it would require Duke “to waive her statutory rights under Sections 409 and 502(a)(2) to bring representative claims on behalf of the plan and to seek plan-wide remedies,” Judge Choudhury said.
Judge Choudhury refers to the sections of ERISA that authorize individuals to sue on behalf of a benefit plan for fiduciary breach and for damages resulting from those breaches.
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Duke and the proposed class are represented by Michelle C. Yau, Daniel Sutter and Ryan A. Wheeler of Cohen Milstein Sellers & Toll PLLC, Todd Jackson and Nina Wasow of Feinberg Jackson Worthman & Wasow LLP, Peter K. Stris, Rachana A. Pathak, Victor O’Connell, John Stokes and Dana Berkowitz of Stris & Maher LLP and Shaun P. Martin of the University of San Diego Law School.
A Missouri federal judge granted final approval Tuesday to the National Association of Realtors’ antitrust settlement with home sellers, signing off on a $418 million payment and changes to broker commission rules, as NAR and the plaintiffs assailed the U.S. Department of Justice for raising last-minute concerns about the deal.
NAR announced U.S. District Judge Stephen R. Bough’s approval, which was issued from the bench during a fairness hearing. The association said a written decision is expected soon on a deal it said releases from liability more than 1.4 million trade group members as well as its local associations, multiple listing services and all brokerages helmed by NAR members with residential transactions of $2 billion or less in 2022.
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The settlement ends NAR rules that required brokers working for sellers to make an offer to compensate a buyer-side broker when listing a property. Home sellers contended the rules violated antitrust law by eliminating competition between brokers working for buyers and resulted in sellers paying inflated commissions of around 3% to each broker.
The litigation also contended the rules caused buyer brokers not to show homes with lower commissions being offered or to only show homes with higher commissions.
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The home sellers are represented by Cohen Milstein Sellers & Toll PLLC, Susman Godfrey LLP, Hagens Berman Sobol Shapiro LLP, Boulware Law LLC, Ketchmark & McCreight PC and Williams Dirks Dameron LLC.
The U.S. Court of Federal Claims has refused to let the federal government escape a suit filed by property owners who claimed that their properties were taken without just compensation due to years of destructive flooding caused by the U.S. Army Corps of Engineers.
In his Monday ruling, Judge Armando O. Bonilla denied the federal government’s judgment on the pleadings motion, which alleged that the court should toss claims made under the Fifth Amendment’s takings clause if those claims were based on “less than three floods” damaging the plaintiffs’ properties.
The plaintiffs began their suit in the U.S. Court of Federal Claims in 2014, claiming that the U.S. Army Corp of Engineers’ Missouri River Recovery Program caused flooding that damaged their properties. In November 2023, the Federal Circuit refused to rethink its June 2023 decision that affirmed an award of over $7 million in damages to three bellwether plaintiffs.
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The plaintiffs are represented by Seth C. Wright, David K. Schultz and E. Benton Keatley of Polsinelli PC and Benjamin D. Brown and Alexander J. Noronha of Cohen Milstein Sellers & Toll PLLC.
The company has also agreed to hire experts to address compensation disparities impacting roughly 9,000 women who said they’re being paid less than their male counterparts for similar work.
Disney will pay $43.25 million to settle a class action from roughly 9,000 female employees in California accusing the company of pay discrimination.
Under the deal, Disney will retain experts to address “significant pay differences” using a model commissioned by lawyers representing the women, they said in a statement.
The lawsuit, filed in 2019, centered on claims from female workers employed by Disney since 2015, who said they’re being paid less than their male counterparts for substantially similar work. It was brought by LaRonda Rasmussen, a longtime product development manager at Walt Disney Studios, and Karen Moore, who has spent over two decades as a senior copyright administrator for Disney’s Hollywood Records. At the time, Disney denied allegations of pay bias across numerous corporate divisions in the class action seeking up to $300 million.
The settlement was reached in September, though terms of the deal weren’t disclosed. Plaintiffs’ lawyers on Monday moved for approval of the deal. Los Angeles Superior Court Judge Elihu M. Berle is tentatively scheduled to consider the agreement at a Jan. 10 hearing.
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The long-running case cleared a major hurdle last year when a judge certified a diverse class of employees who work across the company’s movie production arm, record labels, theme parks and home distribution subsidiaries, among various other units including broadcast and research and development. It’s believed to be one of the largest classes ever suing under an equal pay act claim. The group comprised women employed by Disney between April 2015 and three months before trial, which was scheduled to start in May, below the level of vice president.
“This settlement would not be possible without these courageous women. Because of them, women can expect equitable treatment at Disney in the future,” said Christine Webber, a lawyer for the women and partner at Cohen Milstein. “I am hopeful the court will move swiftly to approve the settlement, so these hard-working women can move forward with confidence that best practices will be used and unencumbered by further litigation.”
The U.S. Department of Justice warned the National Association of Realtors that changes to broker commission rules agreed to in a settlement with home sellers does not shield the industry from government antitrust scrutiny.
The DOJ filed a statement of interest on Sunday in Missouri federal court ahead of a fairness hearing scheduled Tuesday for a settlement over NAR rules that required agents listing homes to offer compensation to brokers that work for the buyers on a sale.
NAR and several large brokerages have agreed to pay around $1 billion and to make a number of changes over claims that the rules have inflated broker commissions.
The DOJ’s statement noted that it has an ongoing antitrust investigation into NAR’s rules and said the settlement with home sellers should not be used as “a shield against a future enforcement action by the United States.”
“For this reason, the United States respectfully requests that if the court approves the settlement, it should clarify that such approval does not address whether the proposed settlement prevents and restrains current antitrust violations, remedies past violations, or contains revised policies and practices that comply with the antitrust laws,” the statement said.
Enforcers said they take no position on most aspects of the settlement but are concerned about new requirements for brokers to obtain a written agreement from prospective buyers before showing a home.
The DOJ said the new provision limits how brokers compete for clients and bears a close resemblance to prior restrictions among competitors that courts have found violate the antitrust laws, including a case involving an agreement that prohibited certain information from being distributed through a multiple listing service, or MLS.
Other changes being made as a result of the settlement would bar Realtors from including the commission a buyer’s broker would be paid on an MLS, though the DOJ said brokers would still be able to publicly post the commission offers elsewhere.
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The home sellers are represented by Cohen Milstein Sellers & Toll PLLC, Susman Godfrey LLP, Hagens Berman Sobol Shapiro LLP, Boulware Law LLC, Ketchmark & McCreight PC and Williams Dirks Dameron LLC.
Fox Corp. “demonstrated willingness to republish demonstrably false material” promoting bogus 2020 election conspiracies to bolster its market share, a class attorney said during dismissal arguments Friday in a Delaware Court of Chancery suit seeking billions of dollars in damages.
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The derivative suit named Fox’s chairman, Rupert Murdoch, and his son Lachlan as well as Fox News’ CEO, and Fox’s top legal officer and four directors. Among the allegations were claims that Fox’s multiple politically clouded damage payouts in recent years resulted from an utter failure of oversight and knowing breaches of duty, factors required to overcome Delaware charter protections for company directors.
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The plaintiffs are represented by Joel Friedlander, Jeffrey M. Gorris and Christopher M. Foulds of Friedlander & Gorris PA, Ellen Rosenblum and Brian A. de Haan of the Oregon Attorney General’s Office, Julie Goldsmith Reiser, Molly J. Bowen and Brendan Schneiderman of Cohen Milstein Sellers & Toll PLLC and Katherine Lubin Benson of Lieff Cabraser Heimann & Bernstein LLP.