Category: In the News - Page 34

Cohen Milstein Sellers & Toll PLLC has hired the acting director of the Commodity Futures Trading Commission’s whistleblower office, who brings more than two decades of experience working in related roles in public service to the platform.

Christina K. McGlosson joins Cohen Milstein as special counsel: Dodd-Frank whistleblower practice, after spending 10 months as acting director of that CFTC office, the firm announced Monday. She’ll be based in Cohen Milstein’s Washington, D.C., office, according to her firm profile.

Serving as acting director was McGlosson’s second role with that agency, having previously served as associate director of the CFTC’s Division of Enforcement from 2017 to 2021, according to her LinkedIn profile. At the CFTC’s whistleblower office, McGlosson oversaw $42 million in awards to four whistleblowers in September and October of last year, the firm said.

“It’s really a great merge for me in a way, to leverage whistleblower, federal securities, SEC and even any commodities CFTC matters representing a whistleblower that would come in here,” McGlosson said. “I really thought it was a good synergy with what I can give and what they need.”

More than 50,000 participants in a Nationwide pension plan can proceed as a class with claims that the company unlawfully transferred assets from the plan to a company subsidiary, as an Ohio federal judge ruled that questions about Nationwide’s conduct outweigh differences among participants.

In an order issued Thursday, U.S. District Judge Sarah D. Morrison granted class certification in an Employee Retirement Income Security Act led by former Nationwide Mutual Insurance Co. employees Ryan Sweeney and Bryan Marshall. They alleged in their January 2020 suit that Nationwide Mutual made illegal transfers from the pension plan — an investment option under Nationwide’s larger savings plan called the Guaranteed Investment Fund — to Nationwide Life Insurance Co., which serviced the plan.

“We agree with the court’s analysis that all class members have an interest in recovering the alleged excessive fees of the fund on behalf of the plan, and look forward to proving our clients’ ERISA claims at trial,” said Kai Richter of Cohen Milstein Sellers & Toll PLLC, who is representing the plan participants.

On March 29, 2024, the National Women’s Law Center issued the following press release:

WASHINGTON D.C. – On Thursday, March 28, 2024, a broad coalition of major medical organizations, physicians, people who have been denied critical health- and life-saving emergency abortion care, former HHS officials, Members of Congress, states, cities, counties, prosecutors, public health experts, legal scholars, businesses, advocates for disability rights, survivors of intimate partner violence, abortion funds, and more than 100 gender justice, reproductive rights, health justice, disability rights, civil rights, and labor organizations filed 27 amicus briefs to the Supreme Court.

The briefs outline the devastating, lifelong consequences of removing federal protections guaranteeing a right to emergency abortion care for pregnant patients in the Supreme Court case Idaho v. United States and Moyle v. United States, which will be heard on April 24th.

The case presents two fundamental questions that can impact the future of our country. First, whether the Court will interpret the law to permit women and pregnant people to be singled out for disfavored treatment when it comes to federal protections. Second, whether states can make exceptions to federal laws they disagree with, upending a bedrock principle of federalism.

“In the aftermath of the Supreme Court overturning Roe v. Wade, EMTALA has become an even more vital safeguard for ensuring that all pregnant people have access to the medical care they need and deserve. These amicus briefs demonstrate broad support for the longstanding nationwide guarantee of care for pregnant people who are experiencing emergency medical conditions.” said Gretchen Borchelt, Vice President for Reproductive Rights and Health at the National Women’s Law Center. “To remove these protections would threaten people’s health and lives, worsening the already severe maternal health crisis, which disproportionately affects Black, Indigenous, and other people of color, people in rural communities, people with disabilities, people with low-incomes, immigrants, and other people who already experience significant barriers to health care. That we are forced to plead with the Court to shield us from unnecessary suffering and even death is unacceptable. The Court must uphold EMTALA’s protections for pregnant people.”

“For nearly four decades, EMTALA has provided the foundation for the emergency care safety net and been supported by lawmakers of diverse ideological perspectives.” said Skye Perryman, President and CEO of Democracy Forward. “Extremists’ efforts to ban abortion – even in emergency settings – create bad law and bad medicine and are directly contrary to EMTALA’s mandate and to bedrock principles of medical ethics. Pregnant patients, like all people, are entitled to stabilizing emergency care that EMTALA requires and state laws that conflict with this federal protection are unlawful. Democracy Forward will continue to support the protections for patients provided by EMTALA and oppose efforts by states to undermine those protections. We urge the Supreme Court to protect the right of every person in this country to obtain the emergency care they need.”

“This case illustrates the importance of EMTALA’s mandate that Medicare-funded hospitals provide stabilizing emergency treatment to all who need it. Patients with emergency pregnancy complications are vulnerable to death and life-long illness, and they deserve what federal law guarantees: access to the treatment necessary to save their lives and health. Cohen Milstein is proud to stand with and support the National Women’s Law Center and its coalition partners in their work to protect pregnant people,” said Alison Deich, Partner at Cohen Milstein Sellers & Toll, PLLC.

Highlights from the 27 briefs filed include:

Leading medical and public health organizations, including the American College of Obstetricians and Gynecologists, American College of Emergency Physicians, American Public Health Association, a coalition of 678 Idaho physicians and healthcare providers, multiple physician organizations, and 133 distinguished deans and professors of disciplines spanning the health professions, filed briefs explaining that abortion care is necessary to treat a range of emergency pregnancy complications and arguing that if pregnant people are excluded from EMTALA, state abortion restrictions, such as Idaho’s law, will force health care providers to choose between following the law and their expertise, potentially criminalizing them for providing health- and life-saving care.

Patients who were denied health- and life-saving abortion care and more than 100 community-based and national gender justice, reproductive rights and justice, disability rights, civil rights, and labor groups filed briefs underscoring the widespread harm to pregnant people experiencing emergencies that would result from being excluded from EMTALA, particularly for those who most need pregnancy-related emergency care yet are least likely to be able to access it, and how a decision gutting EMTALA will further exacerbate this country’s egregious maternal health crisis, particularly for Black, Indigenous, and other women of color.

258 Members of Congress, former HHS officials, and state and local government officials urge the Supreme Court to protect the supremacy of federal laws and ensure Congressional intent is followed, making it clear that the legislative text and longstanding mandate of EMTALA shows hospitals must provide abortion care when this care is the “necessary stabilizing treatment” for a patient’s “emergency medical condition,” and that for nearly 40 years regulators have understood that EMTALA requires this care.

Legal scholars and experts, including law professors who specialize in procedural, jurisdictional, and constitutional issues, filed briefs explaining that EMTALA’s statutory text plainly requires hospitals to provide abortion care when necessary to stabilize an emergency condition regardless of state laws restricting or banning abortion, countering Idaho’s arguments seeking to undermine the supremacy of federal law, and pointing out the extraordinary nature of the Court’s decision to hear this case this term and let Idaho’s ban go fully into effect before the lower court even had a chance to weigh in.

Business leaders such as Bumble, Lyft, Yelp, and others, explaining that reproductive healthcare restrictions are bad for the economy and bad for business and that restrictions like those imposed by Idaho will result in maternity care deserts, a lack of diversity in the workforce, and an inability to recruit and retain top talent when pregnant people and their families are forced to make family and career decisions based on where they can be guaranteed proper health care.

Learn more about each of the amicus briefs filed.

Joseph Sellers has been named to Forbes’ inaugural list of America’s Top 200 Lawyers. The attorneys selected are not just the finest in the field. They are, in many cases, change agents in every corner of the profession—whether through breakthrough deals, blockbuster cases, societal reform, creating precedent or changing lives through public interest work. All are lawyers whose expertise, passion and purpose set them apart. Some work for emerging businesses and small entrepreneurs; others are counsel to the biggest global brands on the planet, guiding and litigating in the tech space, intellectual property, crypto, employment or the impact of AI. And at a time when politics and the law have become inextricably linked, with landmark criminal and civil cases dominating the national discourse, many of our top attorneys have been pivotal, representing elected officials, governments, defendants, voters—on all sides of the spectrum.

Methodology

To create our inaugural list of America’s Top 200 Lawyers, Forbes assembled an editorial team with broad experience in law practice, coverage of legal news, and knowledge of the legal marketplace. The team then identified a wide pool of eligible candidates through hundreds of interviews with industry insiders, outside nominations, editorial research, and an independent, five-person advisory board of experts. To qualify for consideration, lawyers were required to be active and licensed—and thousands of attorneys from a variety of backgrounds, specializations and jurisdictions were ultimately considered.

In-depth research into each candidate yielded evaluations on a variety of criteria, including reputation, industry honors, influence on the legal landscape, advocacy performance, commitment to diversity, and pro bono work. Although a lawyer’s lifetime achievements were considered, emphasis was placed on their most recent accomplishments. Candidates were then rated in seven weighted categories.

The result is a collection of elite lawyers who have been involved in the most consequential recent cases, deals or legal trends. Others have been deemed, by peers and clients, superlative in their practice area. Some boast immediate name recognition; others are making their mark less publicly. But they all share reputations for integrity, records of excellence—and Forbes’ recognition as the best in the business.

Robby Braun, partner at Cohen Milstein Sellers & Toll, addresses ‘misconceptions’ about the NAR deal’s impact and says Realtors who try to ignore the changes ‘will get left behind’

If the court approves the settlement reached with the National Association of Realtors, listing brokers will still be able to make offers of cooperative compensation to buyer brokers outside of the multiple listing service. Some will initially try to continue with business as usual, but the deal will eventually result in “a wave of innovation” that drives down commissions for consumers.

That’s according to Robby Braun, partner in the antitrust practice group at Cohen Milstein Sellers & Toll, one of the law firms representing plaintiffs in the Moehrl and Umpa commission suits. The firm is also co-lead counsel for the plaintiffs in the NAR settlement.

Inman interviewed Braun’s colleague at Cohen Milstein, Benjamin Brown, when the firm first filed Moehrl five years ago. Now that the case looks to be heading toward a resolution, Inman talked to Braun about what the impact of the proposed NAR settlement could be on commissions, steering and new business models, and whether the deal might meet the approval of the U.S. Department of Justice.

Inman: You guys reached out and said you wanted to talk about misconceptions about how impactful the settlement will be, the extent of the changes that Realtors can expect and why Realtors should take the settlement and the changes that it will bring to the industry seriously or they’ll risk falling behind. So what misconceptions are you referring to?

Braun: There are a few of them. One of the misconceptions I’ve seen posted in some places is this idea that the settlement will result in some sort of perpetual release on a going-forward basis of Realtors who engaged in potentially anticompetitive practices. The release only goes forward up until I think preliminary approval of the settlement, backwards. So if there are further anti-competitive activities in the real estate industry, Realtors may be liable for that.

Another one has to do with this idea that people are going to be able to sidestep the practice changes reflected in the settlement simply by making offers of cooperative compensation off of the MLS.

It is true that the settlement doesn’t prohibit on a categorical, blanket basis, all off-MLS offers of cooperative compensation, but it does impose certain limitations on those offers and what can be done to facilitate those offers of cooperative compensation.

MLS data cannot be used to facilitate offers of cooperative compensation off of the MLS. If someone were to receive an MLS data feed, and they wanted to create some sort of website that hosts offers of cooperative compensation from multiple different brokers, the MLS, once it learned about that practice, would have to cut off their MLS data feed.

I’ve seen some places talk about workarounds, potentially through, for instance, Zillow, or the Zillow-owned site ShowingTime. Those practices won’t be permitted under the settlement.

Misconception No. 3 is this idea that the settlement won’t actually impact anything because brokers can continue to make offers of cooperative compensation unilaterally and not in connection with the MLS or using MLS data feeds. That’s true so far as it goes, but from our perspective, this settlement is going to really spur a new wave of innovation in the real estate industry.

You’re going to see a lot of folks who are experimenting with different types of compensation models and compensation levels. You’re going to see discount brokers. You’re going to see people who are looking to make the process more efficient. You’re going to see some consumers, including on the buyer side, experimenting with not using a broker at all to save money. You’re going to see people using other sorts of professionals, like real estate attorneys instead of brokers.

Maybe in the first year or two, there are going to be some people who ignore the new world that we think this settlement will engender, but ultimately, these innovators and discount competitors are going to increase price competition in the marketplace that’s going to drive down commissions for consumers. People who are in the industry and don’t realize it and don’t account for that are going to get left behind.

Compass Inc. announced Friday that it would pay home sellers $57.5 million in the first settlement since the National Association of Realtors reached its own deal this month to pay $418 million and overhaul rules that have effectively restricted how brokers buy and sell homes and how they’re paid.

The Compass deal, which also comes with similar changes to its own practices, won’t be the last if plaintiffs have their way.

. . .

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 National Association of Realtors agreed to changes that could trim the commissions paid to agents as part of the deal reached with co-lead counsel at Ketchmark and McCreight, Boulware Law, Williams Dirks Dameron, Hagens Berman, Cohen Milstein, and Susman Godfrey.

Journalists refer to it as “above the fold.” The top half of the front page is reserved for the big stuff.

And there, last week, atop The New York Times, The Washington Post, and The Wall Street Journal sat stories about a$418 million settlement that the National Association of Realtors reached to resolve antitrust claims brought on behalf of home-sellers across the country. Perhaps bigger than the number, NAR agreed to shake up the industry practice where the seller’s agent shares commissions—usually 5% to 6% of the total sale price—with the buyer’s real estate agent. Critics have argued that the practice inflates commissions and the overall cost of residential real estate in the U.S.

Our Litigators of the Week are co-lead counsel in the proposed settlement at Ketchmark and McCreight, Boulware Law, Williams Dirks Dameron, Hagens Berman Sobol Shapiro, Cohen Milstein Sellers & Toll, and Susman Godfrey.

The Litigation Daily quizzed Cohen Milstein’s managing partner Benjamin Brown, a driving force in the first-filed suit in Illinois, about how the settlement is poised to change the real estate industry.

Lit Daily: What was at stake in this litigation?

Ben Brown: The amount of money Americans spend annually for real estate brokers is staggering and far higher than in other countries. We knew this litigation was the best chance private antitrust enforcement would have to fix this broken market. While there was potentially a significant monetary recovery if we won, we always recognized that the future value of significant injunctive relief would dwarf the amount of money that could realistically be recovered. So, from the start, the litigation team always approached this case with a goal of changing the way homes are listed and sold in the United States.

How did you and your firm get involved?

We were approached by a realtor and consumer advocate named Doug Miller. Doug had a wealth of knowledge about the industry but no formal antitrust or economics background. A small team at my firm worked for months with Doug and a couple of expert economists to build the case. Then we reached out to partners and friends in the bar to build a formidable litigation team to share the considerable risk of a litigation of this scope and magnitude.

Who all ultimately ended up working on the plaintiffs’ team and how did you divide the labor?

There were many folks involved, but the key attorneys on the Moehrl team were my partner, Robby Braun and myself, Steve Berman and Rio Pierce from Hagens Berman, and Marc Seltzer, and Beatrice Franklin at Susman Godfrey. Robby was really the ringmaster throughout the case but the three firms worked as equal partners. Later, we joined forces with Brandon Boulware’s and Mike Ketchmark’s firms from the Kansas City follow-on case. Their team’s commitment to the litigation and trial skills added tremendous value. Despite the size of the combined team, we have managed to work well together as equal partners.

NAR has been the subject of a couple of DOJ probes over the past decades. Why did it take so long for a private antitrust suit of this sort to come together?

Private and public antitrust enforcers had been discussing broker commissions seemingly forever. But this was a particularly daunting case. Many firms could not afford it because the case required tens of millions of dollars of investment and looked like one that could never settle prior to trial. I also think previous antitrust cases, public and private, were not properly focused on the buyer broker commission rule. The industry currently mandates that sellers offer a blanket and effectively non-negotiable commission to buyer brokers. I think in a decade, people will look back and marvel at how it was that this persisted for so long.

The plaintiffs in the Missouri suit made it to trial first. Was there any tension over that pacing? You filed your case first and they made it to trial first, after all.

Candidly, there was a bit of tension at first. The Missouri case was a smaller case with smaller firms that piggybacked on our filing. But we litigated alongside those firms and soon saw how invested they were in doing the case the right way. Obviously, Mike Ketchmark in particular is a very experienced trial lawyer and the Missouri verdict has benefited all plaintiffs.

What did you learn about your claims by how that trial played out with a $1.8 billion conspiracy verdict in November against NAR and two brokerage firms?

The biggest thing we learned from the trial was how easily the jury understood our case. When you live with a case for years and get into the weeds, sometimes it’s easy to lose sight of the forest. People understand that when the brokers together set up a rule that effectively eliminates all price competition for their services, prices are going to be inflated. People understand it’s unnatural to have sellers paying for the brokers on the other side of their negotiations.

A split Ninth Circuit panel on Thursday affirmed certification of a damages class of Meta Platforms advertisers who were allegedly deceived about Facebook’s “potential reach” tool, but upended certification of an injunction class, telling the district court to take a fresh look at whether the lead plaintiff actually has standing.

The panel majority, in a published opinion, affirmed a California federal judge’s order certifying a class of advertisers who claim Meta raked in money by misrepresenting the potential reach of advertisements to Facebook users by allegedly including fake and duplicate accounts, rejecting Meta’s argument that this misrepresentation does not present a common question across the class.

The advertisers allege that Meta inflated the potential reach of ads on its platforms by stating that “potential reach” was an estimate of people, when it’s actually an estimate of accounts, according to the opinion. Meta argues that this alleged misrepresentation is a numerical discrepancy between people and accounts, rather than people being substituted for accounts, the opinion states.

“Under its theory, Meta contends the misrepresentations materially varied because the numerical value of the discrepancy differed for each individual advertiser based on its advertising budget and targeting, and thus there was no common misrepresentation among the class,” the majority said. “We disagree.”

. . .

Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC, lead counsel for the advertisers, told Law360 on Thursday, “We are very happy with today’s Ninth Circuit ruling. We now look forward to showing the evidence at trial that Meta knew about this inflated reach issue for years and yet continued to take advantage of advertising customers.”

. . .

The advertisers are represented by Geoffrey Graber, Andrew N. Friedman, Karina G. Puttieva, Madelyn Petersen and Eric A. Kafka of Cohen Milstein Sellers & Toll PLLC and Charles Reichmann.

A proposed class of eyeglass wearers is asking a New York federal court to grant preliminary approval of a $39 million settlement to end a suit alleging LensCrafters misled consumers by advertising that its AccuFit Digital Measurement System was five times more accurate than competitors, having reached the agreement less than two weeks before trial.

In a motion filed Monday, the proposed class, led by Thomas Allegra, urged the court to give the go-ahead on the deal with Luxottica Retail North America, which does business as LensCrafters, and bring an end to nearly six years of litigation over the measurement system.

The trial had been scheduled to begin on July 10 but was called off after the parties alerted the court they had finalized a settlement agreement and entered into that agreement on June 27.

In the suit, the proposed class had alleged that LensCrafters had charged a premium for eyeglasses made with the AccuFit system, having advertised that the system allows for more accurate measurements of the distance between a customer’s pupils to within a tenth of a millimeter, and thus the glasses have greater precision than those offered by other companies.

The class claimed, however, that even if the AccuFit system could produce such precise measurements, when it came to actually manufacturing glasses, LensCrafters was still using decades-old technology that could only use measurements of a full millimeter.

. . .

The proposed class is represented by Geoffrey A. Graber, Andrew N. Friedman, Brian E. Johnson, Claire Torchiana and Theodore J. Leopold of Cohen Milstein Sellers & Toll PLLC.

Five of Cohen Milstein’s attorneys have been appointed to serve on Law360 editorial advisory boards for its Benefits, Competition, Consumer Protection, Discrimination, and Wage & Hour sections.

Daniel Sutter – Benefits
Daniel McCuaig – Competition
Eric Kafka – Consumer Protection
Harini Srinivasan – Discrimination
Christine E. Webber – Wage & Hour

The editorial advisory boards provide feedback on Law360’s coverage and expert insight on how best to shape future coverage.