Cohen Milstein Sellers & Toll PLLC, Andrus Anderson LLP, and Goldstein Borgen Dardarian & Ho made Law360’s Legal Lions of the Week list after a California state judge on Dec. 8 certified a class of at least 8,900 women who say The Walt Disney Co. paid them less than their male colleagues, rejecting Disney’s argument that the women failed to adequately identify “substantially similar” jobs performed by the men and women. The plaintiffs are represented by Lori Andrus of Andrus Anderson, Joseph M. Sellers, Christine E. Webber and Phoebe Wolfe of Cohen Milstein and James Kan, Byron Goldstein and Stephanie E. Tilden of Goldstein Borgen.
The bulk of Baltimore’s proposed class action against Merck over its rotavirus vaccine bundling can go to class certification, a Pennsylvania federal judge has ruled, finding that Merck may very well have violated antitrust laws through its “loyalty” program for an essential pediatric vaccine, but also tossing two claims under Idaho and Utah antitrust law.
“This type of conduct, which exploits Merck’s dominant role in producing several indispensable vaccines, could certainly constitute a use of monopoly power that poses antitrust concerns,” U.S. District Judge Gerald Austin McHugh wrote Monday in denying Merck’s motion to dismiss.
Baltimore’s mayor and city council are alleging that Merck began illegally bundling its youth rotavirus vaccine RotaTeq after GlaxoSmithKline PLC released a competitor, offering potentially steep discounts on their other vaccines if health care providers purchase their rotavirus shots from Merck, as well.
Therefore, the plaintiffs say, providers see significant price increases on other Merck vaccines if they don’t purchase RotaTeq, one of just two U.S.-approved rotavirus vaccines.
The bundling, Baltimore officials say, has worked to protect Merck’s dominance in the U.S. rotavirus vaccine market, of which the company allegedly controlled 80% in 2022. And that, in turn, has allowed the company to keep its prices high and increasing, the plaintiffs say.
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Dan Silverman of Cohen Milstein Sellers & Toll PLLC, an attorney for the plaintiffs, said in a statement on Tuesday, “We are pleased about the Court’s thorough, well-reasoned, opinion almost entirely denying Merck’s motion to dismiss. High prices for pediatric vaccines are a serious concern, and we look forward to trying this case on behalf of the City of Baltimore and a proposed class of thousands of others whom we allege paid artificially inflated prices for Merck’s pediatric rotavirus vaccine as a result of Merck’s alleged predatory behavior.”
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Baltimore’s mayor and city council, as well as the proposed class, are represented by Daniel Silverman, Leonardo Chingcuanco and Sharon Robertson of Cohen Milstein Sellers & Toll PLLC, Daniel Walker, Eric Cramer, Russell Paul and David Langer of Berger Montague PC, as well as Ebony Thompson and Jane Lewis of the City of Baltimore.
Read Baltimore Merck Vax Suit Proceeds But Utah, Idaho Claims Cut.
For years, lawyers prodded at the rule on how buyers’ and sellers’ agents share fees. But two lawsuits finally took aim at it head on.
The litigation that could end up changing how millions of Americans buy and sell homes was hiding in plain sight for three decades.
The current set of rules governing how agents are paid, which effectively mean sellers are the ones who set compensation for buyer agents, date to the 1990s. Those rules have come under significant scrutiny, particularly as commissions have remained around 5% to 6% of the sale price even as home values have skyrocketed and many buyers do more of the work finding a home themselves online.
A Kansas City jury last month delivered a $1.8 billion verdict to home sellers in Missouri against the National Association of Realtors and major brokerages, finding they had conspired to keep commission rates high. A judge could triple that to $5 billion. NAR says it plans to appeal.
Groups as varied as the Consumer Federation of America and the Cato Institute have published papers accusing the industry of working to keep Realtor commissions high. The Justice Department has conducted high-profile investigations of NAR twice in the last 20 years. Plaintiffs’ attorneys said they would often field calls from home sellers interested in filing lawsuits.
For three decades all those efforts amounted to very little.
“It seemed a little bit out of reach. You would need an entire industry to be reformed,” said Benjamin Brown, co-chair of the antitrust practice at Cohen Milstein, a 100-lawyer plaintiffs’ firm known for suing big companies and banks.
A call five years ago from a Minnesota consumer advocate and lawyer with a one-person firm would change that.
George Farah, then a partner at Cohen Milstein, took the call with the advocate who had spent decades investigating practices in the industry. Farah says he readily talks to advocates about case ideas and has at times had to listen to a 45-minute soliloquy about how squirrels in the park are creating a shortage by hoarding nuts.
But this time Farah readily saw the potential for a major antitrust case. “C’mon, this is just sitting here,” he remembered thinking. “I was stunned to see that it hadn’t happened yet.”
Farah, who has since started his own firm with a couple other attorneys, said he combed through every rule in NAR’s roughly 175-page handbook and homed in on the requirement that homes listed on a multiple listing service must advertise the compensation offered to the buyer’s agent. Plaintiffs attorneys would ultimately argue that the rule, in combination with a few others, allowed the industry to conspire to keep commissions high, in part by allowing buyers’ agents to steer clients away from homes where sellers offer a lower commission.
Farah wasn’t the only one scrutinizing the industry’s rules. The Justice Department concluded an investigation into similar issues near the end of the Trump administration, resulting in modest rule changes. The Biden administration tried to reopen the investigation but was blocked in court—a ruling it has now appealed.
Attorneys filed a lawsuit in an Illinois federal court in March 2019. They knew that others might follow, and sure enough an attorney in Kansas City saw news reports about the suit and a similar one was filed in Missouri less than two months later.
Getting the cases to trial was still a major financial gamble for the firms involved, requiring millions of dollars spent out of pocket and tens of thousands of hours of unpaid attorney time.
Antitrust cases almost always settle before trial, giving attorneys some assurance they will get paid something. But in this case, the damages were so high and the threat to the industry so existential that plaintiff attorneys thought it unlikely NAR would settle. The potential damages in the two cases combined could surpass $40 billion.
Read How the $1.8 Billion Real-Estate Commissions Lawsuit Came to Be.
- DuPont, Chemours argued PFAS class action lacks precedent
- Class of North Carolina plaintiffs could soar above 100,000
A federal appeals court refused to grant chemicals manufacturers’ request to appeal a ruling allowing a class of North Carolina residents to seek money for alleged PFAS damage.
The Nov. 17 decision by the US Court of Appeals for the Fourth Circuit came about one month after the US District Court for the Eastern District of North Carolina certified a class of state residents who seek reimbursement for property damage that allegedly stemmed from per- and polyfluoroalkyl substances (PFAS).
The Chemours Co. FC LLC and E.I. du Pont de Nemours & Co. requested to appeal Judge James C. Dever’s Oct. 4 ruling. The companies’ counsel argued in a brief that the lack of legal precedent for most of the PFAS at issue disqualifies any potential class action under the immature-tort doctrine.
Plaintiffs argued that the two chemicals manufacturers could afford to pay a massive amount of damages, but counsel for the defendants argued that there could be undue pressure to settle in a class action where members are seeking roughly $5,000 apiece.
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Plaintiffs are represented by Law Offices of James Scott Farrin, Cohen Milstein Sellers & Toll PLLC, Susman Godfrey LLP, Whiteman Law Firm, and The Dedendum Group.
Read Chemical Companies Denied Petition to Challenge PFAS Class Cert.
A Connecticut federal court was wrong to rule that a tenant background screening company cannot violate the federal Fair Housing Act based on a finding that it does not make rental decisions, the United States has argued in an amicus brief to the Second Circuit.
The federal government waded into a legal battle Friday between a Connecticut nonprofit and CoreLogic Rental Property Solutions LLC, which in July won a bench trial that targeted the company’s criminal-history-reporting practices. The government brief does not explicitly argue that the Connecticut Fair Housing Center and two co-plaintiffs should have won in the lower court but asks the appellate court to remand the case with instructions for reconsidering whether CoreLogic’s actions create liability under the Fair Housing Act.
“While CoreLogic’s inability to control the landlord’s final decision is certainly relevant in evaluating causation, it should not be determinative,” the brief said. “Rather, if CoreLogic’s actions cause or predictably will cause a significant disparate impact on the racial makeup of a property, then that should be enough.”
U.S. District Judge Vanessa L. Bryant’s July 20 decision in the District of Connecticut rejected most of the claims connected to Mikhail Arroyo’s criminal history report, which CoreLogic furnished to a property manager that ultimately denied his application to move in with his mother, Carmen Arroyo, in Willimantic. Court filings show that Mikhail Arroyo was involved in an accident in 2015 that left him unable to care for himself and his mother is his conservator.
The ruling held that CoreLogic is not subject to the FHA because it does not make housing unavailable or deny applications, turning away allegations that the company’s reports create a disparate impact on Black and Latino applicants.
The government’s brief said Section 3604(a) of the FHA, which bans discrimination against protected classes in housing decisions, “makes clear that an entity can be held liable for violating the FHA even if that entity does not have the power to make the ultimate housing decision.”
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Arroyo and the Connecticut Fair Housing Center are represented by Christine E. Webber of Cohen Milstein Sellers & Toll PLLC, Greg Kirschner of the Connecticut Fair Housing Center and Eric Dunn of the National Housing Law Project.
Read Tenant Screener Can Be Liable Under FHA, Feds Tell 2nd Circ.
Pay transparency compliance data from Colorado, Washington State, and New York City reveal how government agencies are prioritizing giving employers a second chance before wielding penalties, while also managing the challenge of counting on vulnerable job applicants for tips, attorneys say.
Laws requiring the disclosure of compensation ranges and even benefits in job postings have proliferated across the country. Law360 obtained data from the Big Apple, Colorado, and Washington to get an inside look into how these new laws are starting to play out.
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Pay transparency requirements are straightforward, and employers shouldn’t require “an engraved invitation” to comply, said Christine Webber, a partner of worker-side firm Cohen Milstein Sellers & Toll PLLC and co-chair of its civil rights and employment practice.
“But it is certainly encouraging to see that Colorado seems to be … getting voluntary compliance and actually handing out penalties in the cases … where they didn’t get quick compliance,” she said. “They were willing to enforce and impose penalties.”
Washington’s pay transparency law similarly requires postings to contain pay ranges, details on benefits and information about other compensation, such as stock options. The law took effect in January.
Between Jan. 1 and Nov. 10, Washington’s Department of Labor & Industries has received 323 complaints of pay transparency violations, but of those 273 had to be treated as tips.
A spokesperson for the department said it can’t accept complaints if they don’t have enough information to reach out to the worker or employer, if they are filed anonymously or if the worker did not apply for the job at issue.
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The number of anonymous complaints might suggest many are afraid to have their names attached to a complaint against a company they’re seeking employment from, Webber said.
“Which again, goes to the importance of … state and local in the case of New York [City] being willing to be real proactive about enforcement,” she said. “Because I think somebody applying for a job is the most vulnerable in terms of feeling like any little thing they do could mean they don’t get the job.”
New York City’s pay transparency law, which went into effect in November 2022, requires covered employers to include a “good faith” pay range in job advertisements.
Read Data Show Employers Get Pay Transparency Wiggle Room.
Former President Donald Trump must face a trio of lawsuits seeking to hold him liable for inciting the Jan. 6, 2021, insurrection at the U.S. Capitol, a D.C. Circuit panel ruled Friday, rejecting Trump’s claim that he has absolute immunity from liability.
In a highly anticipated opinion delivered a year after the case was argued last December, a three-judge panel said Trump’s proffered test for immunity — that the president is insulated from civil suits whenever he speaks on matters of public concern — goes too far.
Still, U.S. Circuit Judge Sri Srinivasan wrote that the decision is “not necessarily even the final word on the issue of presidential immunity.” His opinion said the ex-president will get the chance to offer facts backing his immunity claims to the trial court before the litigation delves into the merits.
“In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate,” Judge Srinivasan said.
The U.S. Supreme Court has recognized that a president cannot be sued for official actions during his presidency, but those protections do not extend to unofficial conduct. And in a first-term president’s campaign for a second term, he does so in “an unofficial, private capacity as office-seeker, not an official capacity as office-holder,” Judge Srinivasan said.
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Cohen Milstein Sellers & Toll PLLC partner Joseph Sellers, who represents the plaintiffs, expressed confidence that the district court would again reject Trump’s immunity defense. He pointed to “overwhelming” evidence — such as the U.S. House Select Committee report on the Jan. 6 attack — that the then-president acted in his private capacity leading up to and during the attack.
The various evidence suggests that, upon return to the district court, “it’ll be quite clear that President Trump has no immunity from suit in this case,” Sellers said.
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The plaintiffs are also represented by Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC, Janette McCarthy-Wallace, Anthony P. Ashton and Anna Kathryn Barnes of the National Association for the Advancement of Colored People and Robert B. McDuff of the Mississippi Center for Justice.
Read Trump Has To Face Riot Suits, DC Circ. Affirms
The full Federal Circuit declined Wednesday to reconsider a panel’s June decision affirming a more than $7 million award for farmers along the Missouri River who incurred serial flooding of their land, rejecting the federal government’s warning the takings ruling could yield “untold billions” in future liability.
The Army Corps of Engineers previously filed its petition for rehearing en banc in early September, saying such review is warranted because the panel’s unanimous decision “adopts a new principle of Fifth Amendment takings law that effectively deems the plaintiff landowners to have acquired a property interest in the operations of government civil works.”
The Army Corps maintained the decision could “potentially yield a billion dollars of liability in this case and untold billions for the federal government and state governments in future cases.” Despite the government’s relatively rare en banc rehearing request, the Federal Circuit voted against reviewing the prior decision in a brief three-page order.
According to court documents, the dispute between the Army Corps and the farmers dates back to at least 2004, when the government reengineered the Missouri River and reestablished more natural environments to facilitate species recovery. However, the decisions caused riverbank destabilization and flooding.
Ten years later, more than 400 farmers, landowners and business owners from North Dakota to Kansas sued the Army Corps, alleging floods over the last decade constituted a “taking without just compensation” in violation of the Fifth Amendment.
The U.S. Court of Federal Claims determined in December 2020 that the government owed the lawsuit’s three bellwether plaintiffs — Robert Adkins & Sons Partnership in Iowa, Ideker Farms Inc. in northwest Missouri and Buffalo Hollow Farms Inc. in Kansas — more than $7 million in collective damages for the devaluation of their property.
The Army Corps appealed the decision shortly after.
However, a unanimous Federal Circuit panel thoroughly rejected the government’s argument that the federal claims court lacked jurisdiction and that the plaintiffs misapplied causation and relative benefits to their Fifth Amendment claim. Instead, the panel said it is undisputed that the Army Corps has “permanently burdened plaintiffs’ land with a right to access their land with flood waters.”
The panel further concluded the federal claims court erred in ruling that the bellwether plaintiffs weren’t eligible for damages for crop losses and property damages incurred over the years and that the government was not responsible for flood damages caused in 2011, prompting the Army Corps to file a petition for rehearing en banc on Sept. 11.
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The plaintiffs are represented by Seth C. Wright of Polsinelli PC, Benjamin D. Brown of Cohen Milstein Sellers & Toll PLLC, and Donald B. Verrilli Jr., Elaine J. Goldenberg, Benjamin J. Horwich and Evan Mann of Munger Tolles & Olson LLP.
Read Full Fed. Circ. Won’t Rethink US Loss In Farmers’ Flood Case.
The ruling by the U.S. Circuit Court of Appeals for Washington, D.C. allows a number of pending lawsuits against the former president to proceed.
A federal appeals court on Friday rejected former President Donald Trump’s bid to dismiss civil claims seeking to hold him to account for the Jan. 6 riot, 2021 at the U.S. Capitol, denying his claims of presidential immunity, at least for now.
“The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints. We answer no, at least at this stage of the proceedings,” a panel of judges from the U.S. Circuit Court of Appeals for Washington, D.C. said in its ruling.
The three judges noted that Trump is alleged to have instigated the riot during the course of his re-election campaign, and said, “When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act.”
The ruling allows a large number of lawsuits seeking to hold Trump accountable for the deadly riot to move forward. The cases had all been stayed while the appeals court weighed the immunity issue, which they said would have to be revisited in the lower courts.
“In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate,” the ruling said.
The ruling also suggested he might have an uphill climb.
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Joe Sellers, a co-counsel for the NAACP and other plaintiffs in a separate civil suit against Trump, called the ruling “momentous not only for our clients but for all Americans. Today’s victory brings us a crucial step closer to holding the former president accountable for the harm brought on members of Congress and on our democracy itself. We look forward to continuing our pursuit of justice through the courts.”
The court left open the possibility that the former president could still prevail in his effort to claim immunity from civil cases seeking to hold him accountable for the violence.
A federal appeals court ruled on Friday that civil lawsuits seeking to hold former President Donald J. Trump accountable for the violence that erupted at the Capitol on Jan. 6, 2021, can move forward for now, rejecting a broad assertion of immunity that Mr. Trump’s legal team had invoked to try to get the cases dismissed.
But the decision, by a three-judge panel of the U.S. Court of Appeals for the District of Columbia, left open the possibility that Mr. Trump could still prevail in his immunity claims after he makes further arguments as to why his fiery speech to supporters near the White House on Jan. 6 should be considered an official presidential act, rather than part of his re-election campaign.
The Supreme Court has held that the Constitution gives presidents immunity from being sued over actions taken as part of their official duties, but not from suits based on private, unofficial acts. The civil cases brought against Mr. Trump have raised the question of which role he was playing at the rally he staged on Jan. 6, when he told supporters to “fight like hell” and urged them to march to the Capitol.
Essentially, the appeals court ruled that at this stage of the case, that question has yet to be definitively answered. It said Mr. Trump must be given an opportunity to present factual evidence to rebut the plaintiffs’ claims that the rally was a campaign event — scrutinizing issues like whether campaign officials had organized it and campaign funds were used to pay for it.
“Because our decision is not necessarily even the final word on the issue of presidential immunity, we of course express no view on the ultimate merits of the claims against President Trump,” Judge Sri Srinivasan wrote for the panel.
He added: “In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the run-up to and on Jan. 6 were taken in his official capacity as president rather than in his unofficial capacity as presidential candidate.”
The panel’s decision to allow the three civil cases to proceed for now in Federal District Court in Washington adds to the array of legal woes that Mr. Trump is facing as he runs again for president.
The ruling comes as the former president has mounted a parallel effort to get the criminal indictment he faces on charges of plotting to overturn the 2020 election dismissed based on a similar claim of immunity.
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Joe Sellers, who represented the congressional plaintiffs, said the ruling was “a crucial step closer to holding the former president accountable for the harm brought on members of Congress and on our democracy itself.”
Read Appeals Court Says Jan. 6 Suits Against Trump Can Proceed for Now