Deloitte can’t escape a lawsuit accusing it of failing to warn investors in a South Carolina utility company about the faltering state of a $9 billion nuclear energy project, with a federal judge on Monday declining to dismiss the lawsuit over arguments that the lead plaintiff’s board of trustees didn’t sign off on the suit.
. . .
IBEW Local 98 is represented by Laura Posner, Ji Eun Kim, Steve Toll and Jan Messerschmidt of Cohen Milstein Sellers & Toll PLLC.
Read Deloitte Must Face Investor Suit Over Failed Nuclear Project.
A proposed class action alleging a radiology company and its founders overcharged an employee stock ownership plan can move forward, a Colorado federal judge has ruled, saying the defendants aren’t entitled to a stay while they appeal to the U.S. Supreme Court over an order that found federal benefits law trumped the company’s arbitration agreement.
The Envision Management Holding Inc. board of directors, along with other defendants, argued that the U.S. Supreme Court’s decision in Coinbase Inc. v. Bielski means they’re entitled to a stay while at least one of them appeals a Tenth Circuit decision upholding the conclusion that an arbitration provision tucked in Envision workers’ employee stock ownership plan documents impermissibly blocked remedies under the Employee Retirement Income Security Act.
But U.S. Magistrate Judge Maritza Dominguez Braswell disagreed in her order Thursday, seeing no need to reinstate the stay she lifted in May.
The judge noted that the plaintiffs didn’t challenge the idea that the Coinbase decision allowed for an automatic stay during an appeal to the Tenth Circuit court, but argued that the decision doesn’t also provide for automatic stays for petitions to the U.S. Supreme Court after an unsuccessful appeal.
. . .
Michelle C. Yau of Cohen Milstein Sellers & Toll PLLC, who represents the proposed class, said in an email to Law360 on Friday, “we are glad to see the court reject defendants’ attempt to delay this case further. Our clients are eager to prove their claims.”
. . .
The plaintiffs are represented by Michelle C. Yau, Ryan Wheeler, Kai H. Richter and Caroline E. Bressman of Cohen Milstein Sellers & Toll PLLC.
Read No Pause in ERISA Class Suit for Supreme Court Appeal.
“We need to keep pushing to ensure that people who’ve gotten ensnared in human trafficking or have been victims of human rights atrocities have access to justice. If it’s an American company, they ought to be able to sue in our own courts.”
The National Law Journal has launched a profile series of plaintiff bar leaders. Each Q&A takes a personal look at the attorney’s career and legacy as well as discusses industry trends.
In this edition, Cohen Milstein Sellers & Toll’s human rights practice chair Agnieszka Fryszman discusses limits to jurisdictional access in the U.S. in international human rights cases and the challenges of attorney work-life balance. She also discusses a case she recently settled before the D.C. Court of Appeals with Exxon Mobil on behalf of 11 Indonesian villagers who had suffered human rights abuses including killings, torture and kidnapping.
Could you talk about one recent case that was a milestone for your career and for your practice?
It’s the Exxon case which just resolved, but we filed it in 2001. I was a very young associate and had just had my kids, my children were infants. I had just started working as a litigator and the case ended up lasting 22 years—my kids’ entire lifespan! During the course of the case, I made partner, started this practice group and I became lead counsel.
It was an epic struggle with 11 Indonesian villagers who sued the world’s largest and most profitable corporation, Exxon Mobil. We stuck with it for over 20 years and eventually the case settled just before trial. It was a great result that I think everyone is very, very happy with.
Judge [Royce] Lamberth [at the U.S. District Court for the District of Columbia] wrote a summary judgment opinion that laid out all the human rights abuses, the history of what happened. So it’s part of the historical reckoning of the violence.
How challenging was the process of discovery and witness depositions in this case?
In the beginning it was super hard because you would have to travel there to get documents and to talk to clients. It’s hard to think of the time before cellphones, but in the beginning it was really difficult to communicate. It was arduous, you’d have to commit for weeks to a trip and go by foot to these villages.
But now, 20 years later, everybody has a cellphone, everyone has Zoom, everybody has WhatsApp. So it was much easier—we could have a conversation, we could talk right on their cellphones with the translator. Thanks to technology, it has gotten a lot easier to litigate international human rights cases.
And then the other interesting thing that happened: people were really afraid to come forward when the case was first filed. They were genuinely and reasonably afraid for their lives, afraid of retaliation and afraid of being killed. And as the time got further and further away from the atrocities and from the conflict, people became less scared and more willing to come forward and talk about what had happened.
Often, defendants want to delay and file stay motions, but the irony is that it can work against them.
What are your priorities as a practice leader and woman trailblazer in the law?
Thinking broadly to provide opportunities for younger lawyers and especially women lawyers and women lawyers with families—to create opportunities for other young lawyers both to practice in the field of human rights, to try to institutionalize the practice group and that other lawyers have the opportunity to participate in these cases.
And then help represent victims who need representation and to bring the resources of a very effective and topnotch plaintiffs firm to take on cases where victims really need top-notch legal representation but also to create opportunities for other young women lawyers.
I’m to this day surprised sometimes, when I’m in a room for a big meeting of lawyers that includes only one or two other women partners. I think there’s just a lot more work that needs to be done.
The U.S. Department of Labor has crafted an update to the Fair Labor Standards Act’s overtime exemption, but before the public gets a look, Law360 asked wage and hour practitioners what they would like to see — from a higher salary threshold to reforms related to remote work.
After repeated delays, the proposed rule to revise the federal overtime regulations, titled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional Outside Sales and Computer Employees,” arrived at the White House’s Office of Management and Budget on July 12.
The overtime exemption is at the core of the FLSA’s history — delineating the distinct wage rights of salaried versus hourly employees. Generally, white collar workers are exempt from overtime if they perform specific duties related to their particular exemption and are paid a minimum of $684 per week on a salary basis, defined as a guaranteed weekly amount that does not vary based on the quality or quantity of work.
Here, attorneys lay out their wishlist for the long-awaited rule.
. . .
With such a weakened, subjective duties test, there is an argument for the salary level to do the “heavy lifting” of the exemption analysis by setting the salary level high enough to reflect where workers should fall, said D. Michael Hancock, of counsel at worker-side firm Cohen Milstein Sellers & Toll PLLC and former assistant administrator for DOL’s Wage and Hour Division.
“It’s not hard under the Bush definition of duties to define … the Dollar General Store assistant manager, who spends 90% of her time running a cash register and stocking shelves … as exempt under the executive duties test and to pay her a very, very low salary,” he said. “She may be working at below minimum wage without having access to the overtime premium.”
A strict salary test would also be more efficient, Hancock said.
“They’re still going to be arguments about the duties. But the overwhelming majority of those disputes are going to be settled by whether or not they meet the salary test,” he said. “One of the virtues of a stringent salary basis test is to eliminate the uncertainty on both the employee and the employer side.”
Read 4 Changes W&H Attorneys Want In A New OT Rule.
A Massachusetts federal judge ruled this week that the company behind a tenant screening algorithm that caught the U.S. government’s eye is subject to the Fair Housing Act, rebuffing an attempt by the screening firm and a Boston landlord to duck potential tenants’ racial bias claims.
U.S. District Judge Angel Kelley on Wednesday largely denied bids by SafeRent Solutions LLC and Metropolitan Management Group LLC to escape a proposed class action leveled by housing applicants Mary Louis and Monica Douglas. The pair say the screening company’s so-called “SafeRent Scores,” which are partly based on individuals’ credit history, disproportionately lock Black and Hispanic renters out of housing opportunities.
Siding with the applicants and an amicus brief filed by the federal government, Judge Kelley ruled that the screening firm is subject to the FHA’s ban on racial discrimination in housing. Even though SafeRent itself is not a landlord, Louis and Douglas adequately alleged that property owners relied solely on the company’s decisions to deny prospective renters’ applications, effectively granting it authority to make housing decisions, the judge found.
“While SafeRent delivers ‘an accept/declined/conditional decision’ based on the housing provider’s ‘predetermined decision points,’ those housing providers ‘cannot change the screening algorithm’ and do not know how the SafeRent Score is calculated before selecting its minimum score for applicant approval,” Judge Kelley said in an order. “SafeRent ‘effectively controls the decision to approve or reject a rental application,’ and it ‘has sole control over how scores are calculated.'”
Louis and Douglas filed suit against SafeRent and Metropolitan Management in May 2022. Louis says the landlord denied her application on the sole basis of her SafeRent Score, and later refused to consider her appeal. Douglas argues that a non-party landlord similarly rejected her application using a SafeRent Score, though it later reversed course after she appealed with the help of co-defendant Community Action Agency of Somerville Inc., court filings show.
The algorithmic screening score produced by the company for tenant applications relies in part on renters’ credit scores. But this reliance on credit scores, which includes debts unrelated to prior tenancies, disproportionately harms Black and Hispanic renters who are more likely to have subprime credit scores, the two women told the court.
After determining that SafeRent is subject to the FHA, Judge Kelley concluded that Louis and Douglas’ case adequately alleges that the use of the screening score has a disparate impact on Black and Hispanic renters.
. . .
The renters are represented by Todd S. Kaplan and Nadine Cohen of Greater Boston Legal Services, Christine E. Webber and Samantha N. Gerleman of Cohen Milstein Sellers & Toll PLLC, and Stuart T. Rossman, Charles M. Delbaum and Ariel C. Nelson of the National Consumer Law Center.
Read Judge Says Tenant Screening Co. Subject To Fair Housing Act.
A New York federal judge denied Bloomberg LP’s bid Tuesday to ax pay discrimination claims from a former news producer’s proposed class action claiming hundreds of female employees were systematically underpaid, saying she provided enough detail to sustain her lawsuit.
U.S. District Judge Gregory H. Woods rejected Bloomberg’s bid to toss Naula Ndugga’s individual and class action claims alleging violations of Title VII that she asserted in her fourth amended complaint. The judge ruled that she pointed to specific practices that she alleges caused women in the company to earn less than men and that may have had a widespread impact among the class of 1,000 female workers she seeks to represent.
“It is thus plausible that, after discovery, she will be able to demonstrate commonality among BLP’s female producers, reporters and editors, especially since the [editorial management committee] ‘controls all employment decisions’ at BLP,” Judge Woods said.
. . .
Ndugga is represented by Donna H. Clancy of The Clancy Law Firm PC and Christine E. Webber and Rebecca A. Ojserkis of Cohen Milstein Sellers & Toll PLLC.
Read Bloomberg Can’t Narrow Ex-Producer’s Pay Bias Suit
Agnieszka Fryszman, camera-shy and averse to attention, is among the most feared and celebrated human rights lawyers in the world
In fourth grade, her teacher asked the class to draw pictures of what they were going to be when they grew up.
There were firefighters, police officers, ballerinas.
Fast, informative and written just for locals. Get The 7 DMV newsletter in your inbox every weekday morning.
“And I drew a girl surrounded by books,” said Agnieszka Fryszman, now 59.
Which one of these kids do you think grew up to be a slayer of corporate giants, an avenger who has confronted Nazi profiteers, genocide, human traffickers and unscrupulous military subcontractors, from Tulsa to Rwanda? Who made the world reconsider Switzerland’s position in the Holocaust?
Who just brought ExxonMobil to its knees after two decades of fighting torture allegations against its hired security forces in Indonesia? The bookworm.
If you see Fryszman on the streets of D.C., she looks like someone who drew that picture 50 years ago — an unassuming woman with an overstuffed L.L.Bean bag weighing down one shoulder, keeping her gray hair, wearing comfort sandals, a lilac top, glasses.
The former hockey mom, camera-shy and averse to attention, is among the most feared and celebrated human rights lawyers in the world.
“Brilliant,” the Human Trafficking Legal Center said about her “cutting-edge work” when it gave her the advocate of the year award in 2020, noting that her “leadership in the anti-trafficking strategic litigation field is unmatched.”
Her most recent win came outside a D.C. courtroom in May, a week before a trial two decades in the making was about to begin.
This one began in 2001, when 11 villagers in the Aceh province on the northern tip of Sumatra came forward with horrific allegations of rape, murder and torture by Indonesian military units hired to guard the precious assets of the Arun gas fields.
This region rich in natural gas generated huge profits for ExxonMobil.
One of the villagers said guards hired by ExxonMobil shot his leg three times, then “took him to a camp and tortured him for several hours while he continued to bleed from the gunshot wounds. The security personnel broke his kneecap, smashed his skull, and burned him with cigarettes,” according to a 2006 complaint Fryszman and lawyers from her human rights team at Cohen Milstein filed in the U.S. District Court in D.C.
It’s a gruesome document, with allegations of rape, electrocution, a pile of human heads, graffiti carved into one villager’s back. For two decades, it was a story followed by the world’s media. And it ended quietly eight days before the trial was set to start, with some tears from the exhausted villagers — to whom Fryszman gives the credit. ExxonMobil settled for an undisclosed (but probably huge) amount.
The girl with all the books didn’t know she wanted to be a human rights lawyer. But she was in America as a political refugee, an immigrant from Warsaw whose parents escaped communist Poland to find work and freedom outside the oppressive regime. She knew something about persecution.
Her father died early, and childhood was about work and survival. She learned to speak English from TV — cartoons, mostly. And from all those books.
After graduating from Brown University, she worked on Capitol Hill. She wanted more, and sacrificed to get it, attending law school at night because that’s what she could afford.
She walked because the bus was too expensive.
Read This D.C. Hockey Mom Stares Down Torturers, Despots, Human Traffickers.
A group of current and former New York Life Insurance Co. workers asked for class status in their New York federal court lawsuit alleging the insurance giant retained underperforming proprietary investment funds in two retirement plans, arguing that their claims can be litigated in one fell swoop.
The employees said Monday that their Employee Retirement Income Security Act suit against the insurance giant and its investment committee targets practices that commonly affected the plans, which at the end of 2021 had more than $5 billion in assets and 29,000 participants. They said the plans’ trustees engaged in self-dealing, failed to replace lackluster New York Life proprietary mutual funds and improperly established a fixed-dollar account as an investment default.
“Although defendants swim against the tide and resist class certification here, they have no reasonable basis for challenging the relevant Rule 23 criteria,” the employees said, referring to the requirements under the Federal Rules of Civil Procedure to obtain class status.
The group of workers sued New York Life in March 2021. They alleged that the company breached its fiduciary duties by retaining its proprietary MainStay Funds in the plan, despite warnings from its outside investment consultants that the investment options did not hit their benchmarks. The company also breached its fiduciary duties by retaining a fixed-dollar account that was set as the plans’ default investment option if participants did not select their own investment options, the workers said.
. . .
The workers are represented by Michelle C. Yau, Michael Eisenkraft, Kai Richter, Daniel R. Sutter, Jacob T. Schutz, Eleanor Frisch and Caroline E. Bressman of Cohen Milstein Sellers & Toll PLLC.
Read New York Life Workers Seek Class Nod In 401(k) Suit.
Expanding accredited investors seen by some as lift for private markets, by others as dangerous
House lawmakers have passed several bills on a bipartisan basis in recent weeks aimed at broadening the pool of accredited investors eligible to participate in private markets, but not everyone agrees that it’s a good idea.
Proponents say that sophisticated investors who understand the risks and complexities of private markets investing should be provided with additional avenues to be deemed accredited and invest in the high-performing asset classes. But opponents say the accredited investor designation should be made tougher to achieve in order to protect investors from risky, illiquid investments with insufficient disclosures.
. . .
‘Fraught with risk’
Other stakeholders with different professional backgrounds made similar points.
Laura H. Posner, New York-based partner at Cohen Milstein Sellers & Toll PLLC, said investors who meet financial thresholds should also have to pass a test to gain accredited status. Moreover, the financial thresholds should be tied to inflation, she added.
“It doesn’t really matter whether you have financial acumen or not, it doesn’t protect you from the risks if the investment goes bad,” Ms. Posner said. “You still have to be able to put food on the table, pay your mortgage, put your kids through school and save for retirement. If you can’t do that safely without real risk, it seems to me we shouldn’t be encouraging that kind of risky investment.”
Read Strong Opinions Rise Over Definition Change.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
IN RE WELLS FARGO & COMPANY SECURITIES LITIGATION
Case No. 1:20-cv-04494-GHW-SN
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR
ATTORNEYS’ FEES AND LITIGATION EXPENSES
TO: All persons or entities who purchased or otherwise acquired the common stock of Wells Fargo & Company during the period from February 2, 2018 through March 12, 2020, inclusive (the “Class Period”), and were damaged thereby (the “Settlement Class”).1
PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the U.S. District Court for the Southern District of New York (the “Court”), that the above-captioned securities class action (the “Action”) is pending in the Court.
YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have reached a proposed settlement of the Action for $1,000,000,000 in cash (the “Settlement”), that, if approved, will resolve all claims in the Action.
A hearing will be held on September 8, 2023 at 10:00 a.m., before the Honorable Gregory H. Woods either in person at the U.S. District Court for the Southern District of New York, Daniel Patrick Moynihan U.S. Courthouse, Courtroom 12C, 500 Pearl Street, New York, NY 10007-1312, or by telephone or videoconference, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether, for purposes of the proposed Settlement only, the Action should be certified as a class action on behalf of the Settlement Class, Lead Plaintiffs should be certified as Class Representatives for the Settlement Class, and Lead Counsel should be appointed as Class Counsel for the Settlement Class; (iii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated May 8, 2023 (and in the Notice) should be granted; (iv) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (v) whether Lead Counsel’s application for an award of attorneys’ fees and expenses should be approved.
If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to a payment from the Settlement. If you have not yet received the Notice and Claim Form, you may obtain copies of these documents by contacting the Claims Administrator at Wells Fargo Securities Litigation, c/o Epiq Class Action and Claims Solutions, Inc., P.O. Box 5430, Portland, OR 97228-5430; (888) 301-4209; or info@WellsFargoSecuritiesClassAction.com. Copies of the Notice and Claim Form can also be downloaded from the Settlement website, www.WellsFargoSecuritiesClassAction.com.
If you are a member of the Settlement Class, in order to be eligible to receive a payment from the Settlement, you must submit a Claim Form postmarked (or submitted online) no later than October 5, 2023. If you are a Settlement Class Member and do not submit a proper Claim Form, you will not be eligible to receive a payment from the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action.
If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than August 18, 2023, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to receive a payment from the Settlement. Excluding yourself is the only option that may allow you to be part of any other current or future lawsuit against Defendants or any of the other released parties concerning the claims being resolved by the Settlement.
Any objections to the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel’s motion for attorneys’ fees and litigation expenses, must be filed with the Court and delivered to Lead Counsel and Representative Defendants’ Counsel such that they are received no later than August 18, 2023, in accordance with the instructions set forth in the Notice.
Please do not contact the Court, the Clerk’s office, Defendants, or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to the Claims Administrator or Lead Counsel.
Requests for the Notice and Claim Form should be made to:
Wells Fargo Securities Litigation
c/o Epiq Class Action and Claims Solutions, Inc.
P.O. Box 5430
Portland, OR 97228-5430
(888) 301-4209
info@WellsFargoSecuritiesClassAction.com
www.WellsFargoSecuritiesClassAction.com
Inquiries, other than requests for the Notice and Claim Form, should be made to Lead Counsel:
Cohen Milstein Sellers & Toll PLLC
Attn: Laura H. Posner
88 Pine St., 14th Floor
New York, NY 10005
Tel.: (212) 220-2925
Fax: (212) 838-7745
Email: lposner@cohenmilstein.com
Bernstein Litowitz Berger & Grossmann LLP
Attn: John C. Browne
1251 Avenue of the Americas
New York, NY 10020
Tel.: (212) 554-1400
Fax: (212) 554-1444
Email: settlements@blbglaw.com
By Order of the Court
_____________________
1 Certain persons and entities are excluded from the Settlement Class by definition as set forth in the full Notice of (I) Pendency of Class Action and Proposed Settlement; (II) Settlement Fairness Hearing; and (III) Motion for Attorneys’ Fees and Litigation Expenses (the “Notice”), available at www.WellsFargoSecuritiesClassAction.com.