A federal lawsuit filed by survivors of the 2016 Gatlinburg wildfires can now continue after a federal appellate panel reversed a lower court’s decision to dismiss the claims against the National Park Service.
All three judges on the federal panel ruled in favor of overturning U.S. District Judge Ronnie Greer’s decision to dismiss the lawsuit last year. Greer wrote in his ruling that it was dismissed largely due to errors in the families’ initial filing.
He said that the lawsuit did not include a necessary claim that the park had a duty to warn its neighbors and forms submitted to claim damage, injury, or death were missing specific pieces of information. An attorney representing the families called the decision “totally wrong” and filed a federal appeal in March 2022.
A lawsuit filed by several insurance companies was allowed to continue because they included the necessary ‘failure to warn’ charge.
The ruling remands the case back to the United States District Court for the Eastern District of Tennessee for further court proceedings.
“We are extremely happy with today’s ruling from the 6th Circuit Court of Appeals,” said Ted Leopold, plaintiffs’ counsel at Cohen Milstein. “We now look forward to litigating these cases on the merits and providing a full measure of justice for the hundreds of our clients who lost their properties, their dreams, and in many instances, lost their lives, all as a result of the federal government’s failure to act quickly during the Gatlinburg fire.”
Watch Gatlinburg Wildfire Survivors’ Lawsuit Back On After Judges Overturn Dismissal.
- Appeals court says victims gave adequate notice of allegations
- 2016 fire killed 14, damaged hundreds of buildings
A U.S. appeals court on Thursday revived lawsuits against the federal government by victims of the 2016 Great Smoky Mountains wildfires, which killed 14 people and caused over $1 billion in damage.
A three-judge panel of Cincinnati-based 6th U.S. Circuit Court of Appeals vacated a lower-court judge’s dismissal of lawsuits alleging that park officials failed to warn the public of the pending danger of the fire after spotting it.
U.S. Circuit Judge Helene White, writing for the panel, said the hundreds of Tennessee residents who were injured, lost loved ones or had their property damaged had given the U.S. Interior Department adequate notice of their allegations to proceed, despite the district court judge’s determination otherwise.
White said the victims “need not articulate the precise cause of action” when initially notifying the government of damages claims under the Federal Tort Claims Act. That law requires people seeking damages from the federal government to submit administrative claims before filing formal legal complaints.
The U.S. Interior Department did not immediately respond to a request for comment.
Theodore Leopold, a lawyer with the law firm Cohen Milstein Sellers & Toll who represents the victims, said in a statement that they “now look forward to litigating these cases on the merits.”
The 2016 wildfires burned approximately 17,000 acres in eastern Tennessee and caused extensive damage to hundreds of buildings in and around the city of Gatlinburg.
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For the victims: Diana Martin and Theodore Leopold of Cohen Milstein Sellers & Toll; and Gordon Ball
Read Wildfire Lawsuits Against US Over 2016 Tennessee Blaze Revived.
A proposed class of workers at a red meat processing plant have reached a $10 million settlement with Seaboard Foods LLC and a cooperation agreement with Triumph Foods LLC in their suit alleging the companies and others conspired to keep wages in the industry low.
In a motion for preliminary approval filed Monday, the proposed class, led by named plaintiffs Ron Brown, Minka Garmon and Jessie Croft, said Seaboard has agreed to pay $10 million into a non-reversionary fund to be distributed to the class, while both Seaboard and Triumph have agreed to provide documents and information to be used as evidence in proceedings against the other defendants.
The trio first sued Seaboard, Triumph, JBS USA, Cargill, Tyson Foods, Perdue Farms and others in November, alleging they shared compensation studies and data and collaborated with supposed competitors to ensure uniform, industry-wide pay policies in violation of federal antitrust laws.
Purdue settled the claims in this suit and another, similar suit regarding the poultry industry in December, and the plaintiffs moved for preliminary approval of that $1.125 million deal in March, according to court documents. All the other defendants remain in the litigation.
According to Monday’s motion, the settlement class will encompass all persons employed by Seaboard or its subsidiaries between Jan. 1, 2014, and the preliminary approval date of the settlement.
The workers said the $10 million deal was reached through fair negotiations and is preferable compared to the risks of prolonged litigation, given that there are questions of law and fact that could be difficult to prove to a jury.
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The proposed class is represented by Shana E. Scarlett of Hagens Berman Sobol Shapiro LLP, George F. Farah of Handley Farah & Anderson PLLC, and Brent W. Johnson of Cohen Milstein Sellers & Toll PLLC.
Read Meat Plant Workers Ink $10M Agreement In Wage Cabal Suit.
- Antitrust lawsuit seeks up to $1.6 billion in damages
- Class consists of more than 1,200 current and former UFC fighters
A U.S. judge in Nevada on Wednesday said a group of martial arts fighters suing the Ultimate Fighting Championship for alleged suppression of their wages can move forward as a class action seeking damages estimated at between $811 million and $1.6 billion.
U.S. District Judge Richard Boulware’s decision grants class-action status to more than 1,200 fighters who competed in live professional UFC-promoted mixed martial arts bouts in the U.S. between December 2010 and June 2017.
The plaintiffs contend Nevada-based Zuffa, which does business as the UFC, abused its market power to acquire or block rival promoters and used exclusive contracts to keep fighters within the UFC. The plaintiffs alleged the UFC suppressed fighters’ bout compensation.
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For the class: Eric Cramer of Berger Montague; Benjamin Brown of Cohen Milstein Sellers & Toll; and Joseph Saveri of Joseph Saveri Law Firm
Read Martial Arts Fighters’ Wage Lawsuit Against UFC Can Proceed as Class Action.
A Nevada federal judge gave Ultimate Fighting Championship fighters a crucial, long-awaited win Wednesday with the certification of one of two proposed classes in an antitrust suit alleging the organization repressed wages by up to $1.6 billion through coercive, exclusive contracts and the purchase of rival promoters.
U.S. District Judge Richard F. Boulware II certified a class of fighters who competed in at least one professional UFC mixed martial arts bout in the U.S. between December 2010 and June 2017, and he refused to certify a class of fighters whose identities were used in licensed merchandise or promotional materials.
Judge Boulware’s 80-page ruling came down to crediting the statistical model created by the plaintiff fighters’ expert economist, Hal J. Singer, while rejecting arguments from UFC parent company Zuffa LLC as the judge weighs allegations the organization has an illegal monopsony on the buyer-side market of purchasing fighter services.
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The fighters are represented by Eric L. Cramer, Michael Dell’Angelo, Patrick F. Madden, Joshua P. Davis and Mark R. Suter of Berger Montague, Joseph R. Saveri, Jiamin S. Chen and Kevin E. Rayhill of Joseph Saveri Law Firm LLP, Benjamin D. Brown, Richard A. Koffman and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC, Bradley S. Schrager of Wolf Rifkin Shapiro Schulman & Rabkin LLP, Robert C. Maysey and Jerome K. Elwell of Warner Angle Hallam Jackson & Formanek PLC, William G. Caldes of Spector Roseman Kodroff & Willis PC, John D. Radice of Radice Law Firm PC and Frederick S. Schwartz of The Law Office of Frederick S. Schwartz.
Read UFC Fighters Get Class Cert In Wage-Suppression Suit.
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.
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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.
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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.”
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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.
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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.
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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.