The Justice Department plans to file an antitrust lawsuit against concert promoter Live Nation, people familiar with the investigation confirmed Tuesday.
The specific allegations remain unclear, and the timing of a lawsuit is uncertain. The Justice Department declined to comment.
But performers, politicians, scholars, rival promoters and other ticket sellers have argued that Live Nation wields far too much power in the live entertainment industry, with the ability to withhold the best shows from venues that do not use the company’s Ticketmaster service.
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The federal government could file charges narrowly related to the Ticketmaster merger agreement or bring a bigger case related to Live Nation’s perceived market dominance, said Daniel McCuaig, a partner at Cohen Milstein’s antitrust practice and a former trial lawyer with the Justice Department’s antitrust division.
Depending on what charges are filed, the government could seek to unwind the Ticketmaster merger, McCuaig said. He noted that the Justice Department has sought such a remedy in its case against Google and digital ad business.
“This DOJ has been more aggressive than previous administration DOJs about looking at old mergers and deciding that they may have made a mistake in letting something through previously that could now be unwound with a successful antitrust suit,” McCuaig said.
“It looks like big-game hunting on a monopolization theory,” he added. “And monopolization cases are cases that this administration has not shied away from bringing.”
The US Supreme Court agreed that a “pure omission” in an SEC filing can’t give rise to a securities class action without some statement shareholders can point to that’s misleading.
The court’s narrow ruling Friday by Justice Sonia Sotomayor for a unanimous court agreed that some statement was required, but it didn’t go further to say how specific it must be.
Plaintiffs must identify “affirmative assertions” before a court can consider whether “other facts are needed to make those statements ‘not misleading,’” Sotomayor said.
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Laura Posner, who represents investors in securities suits, said the ruling is very narrow. “Pure omission” suits are an “extremely rare occurrence,” because investors “almost always allege at least a half-truth,” she said. Moab did so and will be able to move forward, said Posner, who’s with Cohen Milstein Sellers & Toll PLLC in New York and is also president of the Institute for Law & Economic Policy.
The US Court of Appeals for the Second Circuit revived Moab’s suit based on both types of allegations, and now the half-truth allegations will likely be remanded to the district court, she said.
The court isn’t “opining on anything related to half-truths,” she said. “It left open scheme liability under Rule 10-b5 a and c, and half-truths under Item 303.”
Moab alleged that Macquarie knew the International Maritime Organization’s impending regulation restricting No. 6 fuel oil would materially affect the company because it owned numerous fuel tanks for holding that type of oil—tanks that would have to be repurposed at considerable expense.
But Macquarie didn’t disclose the extent of its No. 6 tank holdings, the anticipated repurposing expense, and other factors, said Moab, which serves as the lead plaintiff in the proposed investors’ class action.
Moab argued that under Section 10(b) and Rule 10b-5, fraud liability encompasses misleading Item 303 statements. The requirement to report material information is a circumstance where omitting information can make other statements misleading, it said. Macquarie wasn’t silent when it wrote the report and certified the completeness of its annual filings, the investment fund said.
But that argument reads the requirement for an affirmative statement out of the rule and “shifts the focus” from fraud to disclosure, Sotomayor said.
The ruling won’t lead to “broad immunity” for a stock issuer’s fraudulent omission of information, the high court said. “For one thing, private parties remain free to bring claims based on Item 303 violations that create misleading half-truths. For another, the SEC retains authority to prosecute violations of its own regulations,” Sotomayor said.
Although the government participated in argument and supported Moab, attorneys didn’t see significant implications for the SEC from the ruling. “The SEC doesn’t typically go out on a limb,” Posner said. “I don’t know that I’ve seen an Item 303 pure omission suit by the SEC.”
PACE centers attract bipartisan interest, some state scrutiny.
George Raines, a white-haired man in a red track suit and matching University of Alabama ballcap, cracked jokes as physical therapist Brad Ellis led him through a series of exercises designed to strengthen his legs.
Raines, who is 79, pretended to be in pain, but his grin belied his tone of mock suffering. The men were in the therapy room at Ascension Living Alexian PACE in Chattanooga, Tennessee, where older clients spend the day getting medical care and other services.
“We have some spicy patients,” said Libba Llewellyn, an occupational therapist at the center. Raines had worn a hat with fake pigtail braids during the center’s Crazy Hat Day the week before, prompting everyone to say he looked like country singer Willie Nelson.
PACE (Program of All-Inclusive Care for the Elderly) centers provide government-funded medical care and social services to people older than 55 whose complex medical needs qualify them for nursing home care, but who can live at home with the right sort of help. Most PACE clients are enrolled in both Medicaid and Medicare, though a small percentage pay for the program through private insurance.
Nationally, PACE centers are owned by a variety of health care organizations, including nonprofits, for-profit companies, large health care systems and religious organizations. Once a state Medicaid program opts — either through legislation or a policy change — to cover PACE care, providers receive fixed monthly payments from Medicare and Medicaid (and in rare cases from private payers) for each enrolled client.
PACE has long flown under the national radar as an elder care option. But it’s recently attracted interest from lawmakers in states including Georgia, Illinois and Ohio because it can keep people at home and may cost less than nursing home care.
More large companies and health care systems, armed with capital and attracted by growing consumer and state interest, are opening PACE centers or buying existing ones from smaller nonprofits. But the explosive growth has come with challenges: Three years ago, California and Colorado investigated and later sanctioned one of the country’s largest for-profit PACE providers after finding it failed to provide services that should have been covered. And some studies have shown mixed results on the centers’ effectiveness.
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In 2016, a private equity-backed company called InnovAge became the country’s first for-profit PACE organization. It purchased nonprofit PACE programs in multiple states over the next few years, growing its enrollment numbers and its revenue.
But in 2021, the Colorado Department of Health Care Policy and Financing suspended all new enrollments at InnovAge’s six Colorado PACE centers after a state audit found that InnovAge Colorado “failed substantially” to provide its participants with medically necessary items and services that should have been covered. Meanwhile, the feds at the Centers for Medicare & Medicaid Services (CMS) were conducting their own investigation, and reached similar findings. Colorado Attorney General Phil Weiser, a Democrat, launched an investigation too.
Around the same time, CMS suspended enrollment at InnovAge’s PACE center in Sacramento, California. InnovAge’s shareholders also filed a lawsuit alleging the company violated federal securities laws by lying to investors about its finances and operations.
“On its face, PACE looks like a great thing, with people getting all-inclusive care in one place,” said Julie Goldsmith Reiser, an attorney for the plaintiffs and a partner at Washington, D.C.-based firm Cohen Milstein Sellers & Toll. “But what’s happening in some of these for-profit models is that people are having longer wait times to see physicians, there aren’t enough physicians willing to participate, and people slip through the cracks and have worse outcomes than if they had never participated at all.”
“Generally speaking, the practitioners will tell you that the rule needs to change. How the rule needs to change remains somewhat of a debate,” said U.S. District Judge Cathy Bissoon of the Western District of Pennsylvania.
A U.S. judiciary panel is suggesting that a federal rule be amended to give parties more flexibility to voluntarily dismiss individual claims rather than entire lawsuits.
The Committee on Civil Rules subcommittee is considering the breadth of Rule 41, which allows for the voluntary dismissal of “actions” or an “action.”
U.S. District Judge Cathy Bissoon said a subcommittee weighing changes to the rule is leaning toward tweaking it to clarify that “action” means single claims and not an entire complaint—a question that has divided some judges. She said the subcommittee has gathered opinions from lawyers and judges.
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Cohen Milstein Sellers & Toll partner Joseph Sellers said the signature requirement should apply to the parties to the claim being dismissed and the defense.
“I think in cases where there are multiple defendants, their interests are not always aligned,” Sellers said.
Board directors of electric truck maker Nikola Corp. and the blank-check company that took it public for $3.3 billion in 2020 must face shareholders’ derivative claims of insider trading, securities fraud and merger-related breaches after Delaware’s Court of Chancery on Tuesday denied more than half of the defense’s motions to dismiss.
In a telephonic bench ruling, Chancellor Kathaleen St. J. McCormick preserved eight of 15 counts in the shareholders’ consolidated class action and derivative complaint, finding that they had adequately pled claims against directors and insiders at Nikola and the special purpose acquisition company that bought it, VectoIQ Acquisition Corp.
Nikola stockholder Barbara Rhodes filed her derivative complaint against 10 of the company’s officers and directors in January 2022, alleging that they looked the other way while the company’s founder and CEO Trevor Milton carried out a criminal fraud before and after the merger.
Rhodes alleges that insiders of the Phoenix-based company allowed Milton to intentionally mislead investors about the company’s prospects and ability to build zero-emission trucks, artificially inflating the company’s valuation to as high as $28.77 billion in an “old-fashioned ‘pump and dump’ scheme.”
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Nikola stockholder Barbara Rhodes is represented by Peter B. Andrews, Craig J. Springer, Andrew J. Peach and David M. Sborz of Andrews & Springer LLC, Julie Goldsmith Reiser, Richard A. Speirs and Benjamin F. Jackson of Cohen Milstein Sellers & Toll PLLC, Frank J. Johnson, Brett M. Middleton and Jonathan M. Scott of Johnson Fistel LLP, Gregory DelGaizo of Robbins LLP and Blake A. Bennett of Cooch & Taylor PA.
The Real Brokerage Inc. will pay $9.2 million in a settlement to exit a class action in Missouri federal court over broker fees that prompted other big brokerages to change how they charge agent fees.
The Real Brokerage said April 8 it would make changes that clarify buyer agent services are free and address how broker compensation offers are communicated with clients, along with employee training materials that reinforce the changes. The deal is still subject to court approval.
The policy changes follow those agreed to by the National Association of Realtors last month as part of a $418 million settlement in the case.
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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 Seventh Circuit granted Casino Queen workers’ request to immediately challenge a trial court’s refusal to certify a class in their suit alleging that company executives charged their employee stock ownership plan $170 million for shares that ended up being worthless.
In an order Monday, a three-judge panel said it would hear a mid-suit appeal from three employee stock ownership plan, or ESOP, participants in their Employee Retirement Income Security Act suit against Casino Queen and its executives.
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“We are extremely pleased that the Seventh Circuit granted our petition,” Michelle C. Yau, who represents the workers, told Law360. “We look forward to obtaining a favorable decision on the merits of the appeal.”
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The ESOP participants are represented by Michelle C. Yau, Eleanor Frisch and Ryan Wheeler of Cohen Milstein Sellers & Toll PLLC and by Shaun P. Martin of University of San Diego School of Law.
A New York federal judge said a lawsuit brought by 16 former workers accusing IBM Corp. of firing older employees to replace them with millennials can proceed despite them not filing the necessary pre-suit charge with the U.S. Equal Employment Opportunity Commission.
On Wednesday, U.S. District Judge Vincent L. Briccetti denied IBM’s motion to dismiss the former employees’ Age Discrimination in Employment Act lawsuit. IBM argued that the case must be thrown out because none of the 16 named plaintiffs brought an age discrimination charge to the EEOC before filing the lawsuit, and thus haven’t exhausted their administrative remedies.
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Joseph Sellers, who represents the former workers, told Law360 that they are pleased with the court’s decision.
“With the court’s denial of IBM’s motion to dismiss, they may proceed to prove their layoffs were the result of age discrimination,” Sellers said.
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The former workers are represented by Ashleigh A. Musser of Gibbs Law Group LLP and by Joseph M. Sellers , Brian Corman, and Michael B. Eisenkraft of Cohen Milstein Sellers & Toll PLLC.
Poultry processing workers sought preliminary approval Monday for deals with Case Foods Inc. and Mountaire Farms totaling $22 million that would make the companies the 10th and 11th wage-fixing defendants to settle out of a broader Maryland federal court case where total payouts reach $217.25 million.
Following settlements with the likes of Pilgrim’s Pride Corp., Simmons Foods, Cargill Meat Solutions Corp. and Perdue Farms Inc., the new deals come with no admission of wrongdoing but would entail cooperation from Mountaire and Case Foods, mostly in the form of document production, as the poultry processing plant workers press ahead against remaining defendants, including Tyson Foods, Koch Foods, Butterball and Agri Stats.
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Like past deals, the new settlements call for the appointment of Hagens Berman Sobol Shapiro LLP, Handley Farah & Anderson PLLC and Cohen Milstein Sellers & Toll PLLC as settlement class counsel, while named plaintiffs Judy Jien, Kieo Jibidi, Elaisa Clement, Glenda Robinson, Emily Earnest and Kevin West would be class representatives.
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The workers are represented by Hagens Berman Sobol Shapiro LLP, Cohen Milstein Sellers & Toll PLLC and Handley Farah & Anderson PLLC.
Two housing organizations and two Long Island residents have settled a long-running federal housing discrimination lawsuit against the owner of several apartment complexes in Suffolk County.
The lawsuit, filed in 2017 by Long Island Housing Services, Suffolk Independent Living Organization, and two residents, alleged that NPS Property Corp. and five of its rental communities participated in racial and source-of-income discrimination that was uncovered through testing and investigation in 2016, according to an LIHS statement.
The complaint alleged that NPS told prospective African American tenants that no upcoming units were available for rent, while telling prospective white tenants that there were multiple upcoming units available and separately, refused to accept applicants using housing vouchers, including SILO’s clients using vouchers designed for those with disabilities.