Walmart Inc. and Energizer Holdings Inc. schemed to artificially inflate disposable battery prices in violation of antitrust and consumer protection laws, according to at least three proposed class actions filed against them in California.

San Fernando, California-based Portable Power Inc. claims Walmart, the largest disposable battery retailer in the U.S., and Energizer, the largest maker of disposable batteries sold in the U.S., agreed to the scheme in early 2018 to slow price declines because of “a dismal market outlook” for disposable battery products.

According to the suit, Energizer agreed to inflate the wholesale prices it charged Portable Power and other direct-purchase retailers and require them to charge customers at least the same price charged by Walmart, which had agreed to give Energizer products preferential treatment in its stores.

The scheme benefited both Energizer and Walmart, Portable Power said in its proposed class action, filed on Friday.

“Energizer agreed to inflate its wholesale prices to Walmart’s competitors. That enabled Energizer to enjoy inflated prices,” Portable Power said. “It also enabled Walmart to artificially inflate its retail prices for Energizer battery products without being undercut by other retail sellers.”

The arrangement saw Energizer raising its wholesale prices for batteries and Walmart increasing some prices by nearly 20% in the third quarter of 2019 and nearly 40% by the first quarter of 2020, with Energizer continuing to raise prices in 2020 and 2021, according to Portable Power.

. . .

The Copeland plaintiffs are represented by Daniel H. Silverman and Leonardo Chingcuanco of Cohen Milstein Sellers & Toll PLLC and Sarah Grossman-Swenson and Kimberley C. Weber of McCracken Stemerman & Holsberry LLP.

The article can be read on Law360 (subscription required).

Chemical manufacturer Chemours accused of violating human rights by releasing ‘forever chemicals’ into Cape Fear River basin

A citizens group in North Carolina has formally requested the United Nations to investigate multiple alleged human rights violations stemming from chemical manufacturer Chemours’ toxic PFAS pollution in the region.

About a half million residents live in the Cape Fear River basin between Fayetteville and Wilmington, where Chemours has produced PFAS and polluted the region for over 40 years. The residents face “an environmental human rights crisis … involving pervasive human exposure to toxic chemicals”, according to a communication filed with the UN by Clean Cape Fear and the University of California at Berkeley Environmental Law Clinic.

PFAS, or per- and polyfluoroalkyl substances, are a class of about 14,000 chemicals often used to make products resistant to water, stains and heat. They are called “forever chemicals” because they are virtually indestructible, and they are linked to cancer, liver problems, thyroid issues, birth defects, kidney disease, decreased immunity and other serious health problems.

A UN human rights commission investigation there would be the first to look into an environmental crisis in the US. Residents say they have been denied the right to clean water, bodily integrity, information, an effective remedy, and a clean, healthy and sustainable environment.’

Read the complete article in The Guardian.

State attorneys general and plaintiffs firms join forces in fight against environmental pollution caused by “forever chemicals,” ushering in a new era of litigation which could cost billions.

Defense and plaintiff attorneys rarely agree on matters of a billion-dollar scale. When it comes to “forever chemicals,” however, both sides concede that the human and environmental cost could be astronomical. In the realm of PFAS (poly- and per-fluoroalkyl substances) litigation, all bets are off.

But being on the same side might end there. Defendants are facing a joint effort by plaintiff firms and state attorneys general in suits with so much in potential damages that some wonder whether a bailout fund akin to what the automobile industry saw will be necessary for those facing PFAS liability.

. . .

Water utilities are facing major challenges facilitating and ultimately financing large-scale cleanup of its drinking water resources. “They have to redo their infrastructure, and that costs a lot of money,” Cohen Milstein partner Theodore Leopold said. Most providers are shying away from passing the cost on to the consumer through rate increases. “Charging the taxpayer is really not fair,” so they try to find other avenues to get reimbursed, litigation being one of them.

“It’s a really, really difficult burden for smaller communities, cities and water utilities,” Leopold added, noting he has been having ongoing conversations and consultations with municipalities across the United States.

. . .

So far, “we’re just scratching the surface on the amount of damages that has occurred to water systems by manufacturers of these toxic chemicals,” Leopold said.

Read the complete story on The National Law Journal.

Retail display maker Triad Manufacturing and employee stock ownership plan trustee GreatBanc agreed to a $14.8 million deal to end a lawsuit from workers claiming they were overcharged for Triad stock, teeing up an end to a court battle that the Seventh Circuit refused to kick to arbitration.

Proposed class representatives James Smith and Jerry Honse on Thursday asked an Illinois federal judge for preliminary approval on the deal reached with Triad Manufacturing Inc. and the ESOP’s trustee, GreatBanc Trust Co. The deal, if approved, would resolve the suit claiming the trustee prompted the ESOP to purchase company shares through a $106 million deal after Triad failed to find an external buyer.

“The settlement provides substantial economic benefit to the class,” the workers said. “The settlement provides approximately $14.8 million of economic value to the ESOP by increasing the value of the ESOP’s Triad stock — and thereby the value of class members’ individual accounts in the ESOP.”

The workers filed the proposed class action against GreatBanc and Triad — which designs, manufactures and distributes retail display fixtures — in March 2020. They said that when the company failed to find a buyer for the business, it turned to the ESOP and sold 1.83 million shares of Triad’s common stock to the plan in a $106 million deal.

The lower court, and then the Seventh Circuit, denied the company’s push to force the Employee Retirement Income Security Act suit into arbitration. The appeals court held in September 2021 that the arbitration agreement the company relied upon improperly blocked relief provided by ERISA.

. . .

The workers are represented by Michelle C. Yau, Daniel R. Sutter, Caroline E. Bressman and Carol V. Gilden of Cohen Milstein Sellers & Toll PLLC and by Nina Wasow and Dan Feinberg of Feinberg Jackson Worthman & Wasow LLP.

Read the complete story on Law360.

Emerging Voices Staff Writer Dan Kent had the chance to sit down with S. Douglas Bunch, a Public Delegate at the United States Mission to the United Nations. Below is a lightly edited transcript of their conversation.

Thank you for taking the time to talk to us! First, can you give me an overview of your career thus far, and what brought you to the United Nations?

Certainly. I am a partner at a law firm in Washington DC called Cohen Milstein, where I litigate securities class actions on the plaintiffs’ side. I also sit on my university’s board of trustees at William & Mary in Virginia. I’m also cofounder of a nonprofit called Global Playground that builds schools in developing countries and then connects those schools with each other. Then, as of last September, I was fortunate to be appointed by President Biden to serve as part of the U.S. delegation to the United Nations.

What is the position that you hold and what are your day-to-day responsibilities? Are there other public delegates and how do you collaborate with them, if at all?

I am a U.S. Public Delegate, and in that capacity, I represent the American public broadly at the United Nations. I essentially serve as an ambassador for purposes of the UN General Assembly session, which runs from September to September. Some of my responsibilities include visits to foreign missions alongside ambassadors at the U.S. Mission, delivering the position of the United States, negotiating the language of resolutions, and speaking on the floor of the General Assembly, both in committee and in the full body.

Are there other public delegates to the U.S. Mission to the UN? Do you collaborate with them at all?

Yes, there are two other public delegates. Generally the White House appoints two or three public delegates every year. We work together on a regular basis, sometimes on projects in common, and sometimes independently. I can give you one example of collaboration: right now, I’m spearheading a consortium of colleges and universities with which the U.S. Mission to the UN can regularly engage. We have briefings on topics of mutual interest to both the U.S. Mission and these institutions. And one of our upcoming briefings will be on food security, which another public delegate has a significant interest in. So we’re thinking about ways to collaborate on that particular briefing.

But across all the public delegates, we are different people from different walks of life. We carry with us different skill sets and interests to leverage for the purposes of the diplomatic work that we do at the U.S. Mission.

On that note, how has your career thus far prepared you for your position in the UN?

I think the common thread across all my different roles has been building relationships.

As a lawyer, I build relationships. As the founder and chair of a nonprofit, I build relationships. And certainly as a diplomat, cultivating relationships globally is what enables us to advance US foreign policy interests. Our ambassador at the US Mission, Ambassador Linda Thomas-Greenfield, has coined the idea of “gumbo diplomacy” — the idea being when you bring different people from diverse backgrounds together around a table and share a meal, you can connect meaningfully with them, and advance what is in their common interests. The careful attention paid to cultivating relationships has always been core to my career and continues to be today.

How have you applied this for yourself?

To me, any time you can connect with people on their own level and meet them where they are is an opening for dialogue. Something like 75% to 85% of leadership is listening. Even in my work abroad in international development, imposing an outsider’s view on a particular problem or an outside solution on a particular issue without listening to the people on the ground is a mistake. The valuable part in connecting with people is that you can genuinely listen to them and solve the problem from the grassroots. That ability to connect and understand people genuinely is core to success as a diplomat.

Like many institutions, the UN gets frequently criticized for a lack of effectiveness in preventing and dealing with crises. What is your perspective on this issue and has serving at the UN itself changed your perspective in any way?

Well, certainly the present is an example of a time when the UN’s credibility is on the line. Certain countries, in particular Russia, violate the core precepts of what the institution stands for. But even if there is a problem that the UN can’t solve in a permanent way, the platform of giving voice to member states that might not normally have a voice, or shedding light on a problem that might not normally get attention, has its own value. Opening the conversation is one thing the UN does really powerfully. Setting standards is something that the UN does really powerfully. The very fact that we are engaged in dialogue and having the conversation is of tremendous value.  Even if we can’t solve the problem in a day, it’s important that we engage in dialogue with each other. The UN provides that platform.

Putting aside the war in Ukraine, for now, what do you think the greatest challenge facing the UN is today?

Representation. The U.S. has been a strong advocate for representation of the Global South in the Security Council in particular. Representation across the board, though, is critical.

Take climate change for example. In the U.S. domestic context, we might think of it as one of a number of political issues that doesn’t always get the prioritization that it should. But for island nations in the Pacific, or countries like Bangladesh, in South and Central Asia, climate change is existential. It really does mean the difference between survival and severe detriment.

Listening to opening statements made by heads of state at the General Assembly session, I was struck by the constant refrain of  issues of climate change and issues of food insecurity. Listening to their perspectives reframes the way I think about international priorities and certainly the role of the U.S. in addressing those challenges.

How about the greatest opportunity for the UN?

Maybe I’m biased in taking a particular interest in this topic, but the UN has a huge opportunity to embrace the importance of diversity and inclusion. On this issue, sometimes just having the conversation is half the battle.

Last Monday, for example, I was part of an effort to host an informal meeting of the Security Council (what we call an Arria-formula meeting), on the lives of LGBTI people in armed conflict. The chance to hear voices of people, for example from Afghanistan, who had lived through the Taliban’s attack on their identities, was really powerful. To give voice to that in the Security Council set an example of the types of dialogue we should be having on equity and inclusion globally. It was inspiring to hear every country commit to the idea of equality for LGBTI people. And especially, it was inspiring to hear confirmation of that in such a prominent place. I think that the UN can do more of that. Sometimes it is the only common voice of member states—in terms of embracing equity and inclusion, through independent experts and rapporteurs. The fact that we had that conversation at the UN was a huge step forward.

Especially in an era where presidents (who have wide discretion over foreign policy) differ markedly in their perspective on world affairs and the US role in them, what is, and should be, the United States’ role at the UN?

We certainly have always functioned as one of the leaders of the institution as a permanent member of the Security Council. But I think one of our important roles is also to turn to the side and invite other countries that might not normally get a voice into the conversation. It was the U.S. who hosted the Arria on LGBTI rights in times of conflict, but we intentionally put a spotlight on the plight of people in Afghanistan, and the experiences of people in Colombia.

College alumni S. Douglas Bunch ’02, J.D. ’06 emphasizes education, professional achievements

After graduating from the College of William and Mary, Board of Visitors member S. Douglas Bunch ’02, J.D. ‘06 still centers education within his career. Whether working as a partner at Cohen Milstein Sellers and Toll PLLC or as a U.S. representative at the United Nations, Bunch continues to emphasize the importance of learning.

“I think education may be the number one factor in advancement and mobility, socially, economically, in terms of the progress of humankind in general,” Bunch said. “I think it’s the way that we can do the most to improve our own ability to help the reset of the world and advance our common interest as human beings.”

Bunch’s desire to improve opportunities for others is rooted in his personal experience. “I grew up in Augusta County, Virginia,” he said. “My dad drove a UPS truck and my mom was a public school teacher. I was the first person on my dad’s side of the family to graduate from college. For me, William and Mary was truly transformative. It inspired me to think critically, creatively and globally.”

When investing in the education of others, Bunch thinks big and does not shy away from ambitious projects. As a Monroe Scholar in 2000, he founded Ascanius: The Youth Classics Institute, a nonprofit organization which teaches classical studies to elementary and middle school students. In 2006, Bunch co-founded Global Playground, a nonprofit which has built educational infrastructure in 11 underdeveloped and developing countries.

Read the complete article in The College of William & Mary’s The Flat Hat.

A group of Facebook users accusing Meta of using its Pixel tool to collect data from millions of hospital patients says discovery in their case should not be coordinated with other suits targeting the Pixel software, warning a California judge that coordination would catalyze a “quagmire” of delay, confusion and prejudice.

Meta Platforms Inc. on April 13 filed a request to coordinate discovery among cases contesting Meta Pixel, a code snippet and user tracking tool embedded in many websites. But the patients say Meta didn’t file its request in their litigation — only in the two other cases — forcing them to file a Monday statement opposing the request.

The two other actions at issue include one from anonymous Facebook users who in December hit Meta with a proposed class action accusing the social media giant of collecting sensitive taxpayer information from certain tax filing websites with the Pixel tool. Another class action, also filed in December, contends Pixel is embedded on the California Department of Motor Vehicles’ website, allowing Meta to obtain vast amounts of protected data on a daily basis from the DMV.

The three actions vary in size and in their state of discovery, the patients argued, and coordinating their discovery would sow chaos.

. . .

The health care plaintiffs are represented by Geoffrey Graber of Cohen Milstein Sellers & Toll PLLC, Jason “Jay” Barnes of Simmons Hanly Conroy LLC, Jeffrey A. Koncius of Kiesel Law LLP, Beth E. Terrell of Terrell Marshall Law Group PLLC, and Andre M. Mura of Gibbs Law Group LLP.

Read on Law360 (subscription required).

Drug companies Merck and Glenmark Pharmaceuticals have settled a group of direct purchasers’ claims that they gouged drug buyers via an anti-competitive 2010 pay-for-delay patent settlement, leaving one fewer group of plaintiffs just as jury selection in a highly anticipated trial is set to kick off, according to court records.

The multidistrict litigation trial in Norfolk, Virginia, is expected to yield an extremely rare jury verdict in the pay-for-delay case, one of fewer than three in the decade since the U.S. Supreme Court’s landmark Actavis ruling in 2013.

That verdict will happen with a smaller group of plaintiffs after the settlement noted on the court docket midday Tuesday. The terms have not been made public.

. . .

The plaintiffs are represented by Glasser & Glasser PLC, Hagens Berman Sobol Shapiro LLP, Radice Law Firm PC, Hilliard Shadowen LLP, Sperling & Slater PC, Kessler Topaz Meltzer & Check LLP, Roberts Law Firm PA, Cohen Milstein Sellers & Toll PLLC, Miller Shah LLP, Nussbaum Law Group PC, Faruqi & Faruqi LLP, Berger Montague, Taus Cebulash & Landau LLP, Furniss Davis Rashkind & Saunders PC, Motley Rice LLC, Miller Law LLC, Wolcott Rivers Gates PC, Kenny Nachwalter PA, and Hangley Aronchick Segal Pudlin & Schiller.

Read the complete story on Law360 (subscription required).

A group of victims and families of victims of the April 15, 2021, mass shooting at an Indianapolis FedEx facility on Thursday sued the distributor of the 60-round magazine used in the attack, saying it recklessly advertised the magazine in a way that encouraged such a shooting.

In the 54-page complaint in New York federal court, the estate of Jaswinder Singh, who was killed in the attack, represented by his son, Gurinder Singh Bains, as well as surviving victims Harpreet Singh and Lakhwinder Kaur and Harpreet’s spouse, Dilpreet Kaur, allege that despite knowing that its products would be attractive to mass shooters, distributor American Tactical Inc. still sold and advertised them while hyping up the number of rounds they carried and their use in battlefield scenarios.

The suit names American Tactical’s president and marketing director, along with Schmeisser GmbH, the German company that made the magazine used in the attack, as defendants.

The complaint opens with quotes from gun manufacturer and designer William B. Ruger Sr. saying, “No honest man needs more than 10 rounds,” and “I never meant for simple civilians to have my 20- or 30-round magazines.”

According to the complaint, American Tactical used imagery reminiscent of combat-based video games and movies, with actors wearing tactical gear similar to what the shooter used when he attacked the FedEx facility, and those advertisements recklessly promoted the magazines to impressionable youths, like the 19-year-old shooter.

. . .

“American Tactical, Inc.’s high capacity magazine used in the FedEx mass shooting had 60 rounds, two to three times the killing capacity of standard magazines,” Leslie Mitchell Kroeger of Cohen Milstein Sellers & Toll PLLC, representing the plaintiffs, said in a statement Thursday. “It is clear that the defendants put profits from high capacity magazines ahead of people, which came at the grave expense of the victims and victims’ families of the FedEx mass shooting.”

. . .

The plaintiffs are represented by Hadley E. Lundback and Kathryn Lee Bruns of Faraci Lange, Leslie Mitchell Kroeger, Poorad Razavi, Rachael Flanagan and Michael B. Eisenkraft of Cohen Milstein Sellers & Toll PLLC and Douglas N. Letter and Philip H. Bangle of the Brady Center to Prevent Gun Violence.

Read the story on Law360.

The state of Michigan told an appeals panel Wednesday that it can’t be on the hook for property damage caused by the 2020 Edenville Dam failure, arguing that property owners are using a ploy to try to get around government immunity because the dam’s private owner went bankrupt.

Nathan Gambill, an assistant attorney general representing the state, said a group of neighbors in consolidated cases are trying to bypass the state’s immunity by labeling their tort claims as inverse condemnations ones. But the state of Michigan cannot be at fault for the damage from the dam break because it did not own or take control of the dam, he said.

That the state government issued permits to the dam does not mean the government controlled it, Gambill told the Court of Appeals panel.

. . .

The lawsuits against state departments – including the Department of Environment, Great Lakes and Energy and the Department of Natural Resources – came after the Edenville Dam at the confluence of the Tittabawassee and Tobacco rivers failed during a rainstorm on May 19, 2020, releasing its impounded water.

The downstream property owners sued the state departments, saying that it was the state’s decision to raise and lower the water levels, and that the flood damage to their properties due to those decisions led to the dam’s failure. Others whose property was not downstream also sued, saying their property values had decreased because they no longer had a lake in front of their property.

The Court of Claims consolidated those 25 cases and denied the state’s dispositive motions to dismiss the complaints, saying the state is not immune from inverse condemnation claims. The state appealed, saying the Court of Claims should have held an evidentiary hearing to review evidence to determine if it had governmental immunity.

The neighbors cannot pursue compensation under Michigan’s Takings Clause because it isn’t enough to say the state caused the damage, Gambill said Wednesday. Rather, to succeed in a takings clause claim, the neighbors would need to show the state took control of their private property and put it to public use, he said.

Attorneys for the property owners said that the state had significant operational control of the dam, and that the neighbors have a right to bring these constitutional claims.

. . .

The citizens are represented by Denenberg Tuffley PLLC, Johnson Law PLC, Pitt McGehee Palmer Bonanni & Rivers PC, The Miller Law Firm PC, Cohen Milstein Sellers & Toll, Giroux Trial Attorneys PC, Gruel Mills Nims & Pylman PLLC, the Rasor Law Firm PLLC, the Buckfire Law Firm, Fieger Law, Behm & Behm and McAlpine PC.