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.

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.

Victims and families of victims of the 2021 Indianapolis FedEx mass shooting filed a lawsuit Thursday against American Tactical Inc. the distributor of the magazine used in the mass shooting, where 13 people were shot, eight fatally.

The 19-year-old suspect was a previous employee at the FedEx Ground station who died by suicide inside the facility, according to police. At least 100 people were inside the FedEx Ground facility on Mirabel Road on April 15, 2021, at the time of the shooting, according to police.

American Tactical, Inc. President Tony DiChario and Marketing Director Joe Calabro, along with the magazine manufacturer Schmeisser GmbH, were also named in the lawsuit, according to a news release.

. . .

“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,” said Leslie Mitchell Kroeger, partner at Cohen Milstein Sellers & Toll, in the news release. “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 Leslie Mitchell Kroeger of Cohen Milstein Sellers & Toll, along with Philip Bangle at the Brady Center to Prevent Gun Violence.

Read the article on IndyStar.

The son of a man killed in a 2021 mass shooting at an Indianapolis FedEx facility filed a federal lawsuit Thursday with two of the survivors against the distributor of the 60-round magazine used by the gunman, alleging the use of reckless marketing tactics targeting young men at risk for violent behavior.

The lawsuit — filed almost exactly two years after the shooting that killed eight people — alleges that American Tactical, Inc. failed to take steps to help prevent dangerous people from obtaining the high-capacity magazine, which allow shooters to fire dozens of rounds without having to reload.

Instead, the lawsuit says the company specifically targeted its products to a “consumer base filled with impulsive young men who feel they need to harm others in order to prove their strength and who have militaristic delusions of fighting in a war or a video game.” It points to action-movie-style marketing videos that were posted on American Tactical’s YouTube page featuring men firing round after round in tactical vests — similar to one worn by the FedEx facility shooter.

. . .

The lawsuit was filed in federal court in New York, where a law passed in 2021 opened the door to civil cases brought against the gun industry by classifying the illegal marketing and sale of firearms as a “public nuisance.”

Read the complete story on AP.

Drug buyers seeking billions in damages in an antitrust pay-for-delay trial against pharma companies Merck and Glenmark urged a D.C. federal judge Wednesday to force Covington & Burling partner Timothy Hester to livestream testimony, citing the finding of the trial’s presiding judge that Hester is a “key” witness.

The case concerns claims that the 2010 patent settlement that staved off Glenmark’s plans for a generic version of Merck cholesterol pill Zetia was anti-competitive and involved a form of “reverse payment” from Merck to Glenmark, costing buyers money as they waited years for a price-decreasing generic to come to market.

Though the trial will take place in Norfolk, Virginia, with jury selection starting Monday, Hester cannot be subpoenaed there, U.S. District Judge Rebecca Beach Smith ruled in recent weeks. Nor can two other key witnesses.

. . .

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 story on Law360 (subscription required).

A class of consumers suing Marriott International Inc. in wide-ranging multidistrict litigation over a major data breach says it needs information on how the hotel company calculated the value of the consumers’ personally identifiable information, asking a Maryland federal judge to sign off on a special master’s report ordering discovery into the valuation.

The consumers’ Tuesday letter to the court comes after Marriott objected to a special master’s report recommending certain discovery into the California Consumer Privacy Act statement contained on Marriott’s website. The discovery, the hotel chain said, “goes far beyond the discovery plaintiffs requested and the ‘narrow, focused discovery’ the court permitted.”

. . .

The discovery is part of multidistrict litigation over a data breach uncovered in 2018 in which hackers stole the personal information of hundreds of millions of guests at Marriott-owned Starwood Hotels & Resorts Inc. The data theft unleashed a wave of lawsuits that were consolidated into the MDL in Marriott’s home state of Maryland.

The litigation has been split into three tracks, the third of which is the consumer track involving millions of people. The first, a securities track, was tossed in June 2021, and the second involves the city of Chicago.

U.S. District Judge Paul W. Grimm in May 2022 certified eight classes of Marriott guests on the consumer track while rejecting a damages model advanced by the plaintiffs on grounds it requires “too much individualized inquiry.”

. . .

The consumer track plaintiffs are represented by James J. Pizzirusso of Hausfeld LLP, Andrew N. Friedman of Cohen Milstein Sellers & Toll PLLC and Amy E. Keller of DiCello Levitt LLC.

Read the complete story on Law360 (subscription required).

Paul Rusesabagina, depicted in the 2004 film about genocide in his country, was reunited with his family last week. It took years of pressure to get him out of Rwanda, where he was convicted on terrorism charges.

Rwanda’s leader was in combative form last December when, on a visit to Washington, he was asked about his country’s most famous political prisoner, and his personal foe.

No amount of U.S. pressure could “bully” Rwanda, President Paul Kagame said, into releasing Paul Rusesabagina, the hotelier whose heroism during the 1994 genocide inspired the movie “Hotel Rwanda.”

“Maybe make an invasion and overrun the country — you can do that,” he added tartly, at an event during the Biden administration’s U.S.-Africa Summit for leaders from around the continent.

Nevertheless, early the next morning, one of Mr. Kagame’s top aides met quietly with President Biden’s national security adviser, Jake Sullivan, to discuss the terms of a potential release.

It was a key step in a complex, secretive effort to free Mr. Rusesabagina, which culminated on Wednesday in his return to the United States, where he was reunited with his tearful family at a U.S. Army base in Texas.

“All of us crumbled when we saw him,” his daughter, Anaïse Kanimba, 31, said in an interview.

The freeing of Mr. Rusesabagina, a 68-year-old dissident and permanent U.S. resident, was not only a triumph for quiet, patient diplomacy. It resolved a growing burden in Washington’s relationship with a small yet important African ally that punches above its weight on the continent, and is accused of stoking a conflict in eastern Democratic Republic of Congo that could explode into a regional war.

Mr. Rusesabagina’s plight also presented a delicate challenge for the United States as it seeks to reset its relations with African countries to counter surging Chinese and Russian influence on the continent.

That has meant shoring up ties with leaders like Mr. Kagame, a prickly authoritarian whose achievements in rebuilding Rwanda after the genocide have been overshadowed by a repressive rule that brooks no dissent — a trend that Mr. Rusesabagina’s case has come to symbolize.

Read the complete story on The New York Times.

Cohen Milstein is honored to have played an instrumental role in the litigation leading up to the release of Mr. Rusesabagina.

A Maryland federal judge on Monday gave her preliminary blessing to Perdue Farms’ $60.7 million settlement with workers who claim the company conspired to keep wages low at its poultry processing plants, certifying a nationwide settlement class of past and present Perdue poultry workers.

U.S. District Judge Stephanie A. Gallagher granted preliminary approval to the deal, finding that it is “sufficiently fair, reasonable and adequate” to resolve the dispute. Judge Gallagher certified a settlement class of all persons employed by Perdue, its subsidiaries or related entities at poultry facilities across the continental United States from 2000 until July 2021.

The class excludes managers, human resources managers, office staff, salesmen and watchmen at those facilities, the judge noted.

Under the deal, Perdue will make a total cash payment of $60,650,000.

Judge Gallagher also appointed Hagens Berman Sobol Shapiro LLP, Handley Farah & Anderson PLLC and Cohen Milstein Sellers & Toll PLLC as settlement class counsel. And she appointed named plaintiffs Judy Jien, Kieo Jibidi, Elaisa Clement, Glenda Robinson, Emily Earnest and Kevin West as class representatives, according to the decision.

. . .

The workers are represented by Hagens Berman Sobol Shapiro LLP, Cohen Milstein Sellers & Toll PLLC and Handley Farah & Anderson PLLC.

A judge ruled that the Moehrl suit would now cover all sellers who paid commissions to named companies over a 5-year period, plus “current and future” sellers.

Key points:

• The Moehrl suit lists top brokerages and MLSs as defendants and seeks damages of more than $13 billion.
• The ruling “is a blow” to the defendants as it “essentially guarantees” a trial, said industry observer Russ Cofano.
• The plaintiffs allege that requiring sellers to pay commissions to buyer brokers is a violation of federal antitrust laws.

A lawsuit that could change the way agents and brokers get paid has been declared a class action, a decision that dramatically increases its scope and potential impact.

Plaintiffs in the Moehrl vs. the National Association of Realtors, et al., case are seeking more than $13 billion in damages because they paid a cost — the buyer’s agent commission — that would have been paid by homebuyers in a competitive market.

U.S. District Judge Andrea R. Wood ruled Wednesday that in addition to the handful of people who sued in 2019, the outcome of the lawsuit will cover thousands of home sellers “who paid a commission between March 6, 2015, and December 31, 2020′ to specified companies and MLSs as well as “current and future” sellers engaged with those entities.

“With this class certification, we are pleased to be one step closer to a trial that will bring a competitive market to millions of Americans buying or selling real estate,” said Benjamin D. Brown, co-lead counsel for the certified classes of home sellers, partner at Cohen Milstein and co-chair of its antitrust practice.

Read the complete article on Real Estate News.

An Illinois federal judge certified two classes of home sellers accusing the National Association of Realtors and several real estate brokerage firms of conspiring to charge “inflated” commission rates for buyer-brokers who sold homes, ruling on Wednesday that the suit’s claims meet several class certification requirements.

In her ruling, U.S. District Judge Andrea R. Wood certified the suit’s damages and injunctive relief classes after determining that there was commonality due to a “central, common question” of whether there was an antitrust conspiracy for inflating commission rates by using the National Association of Realtors rules, described as “challenged restraints.” The presiding judge also ruled that the home sellers listing their homes on multiple listing services, or MLS, that differed from those used by other class members didn’t negate typicality.

“That some class members listed their homes on different MLSs than plaintiffs does not create a typicality issue because all covered MLSs implemented the challenged restraints,” Judge Wood wrote. “As a result, plaintiffs’ claims share the same essential characteristics as the rest of the class and typicality is established.”

Judge Wood further ruled that the damages class has met the predominance requirement of class certification, which requires the “common question” of the suit to “predominate” individual claims. According to the ruling, the defendants had argued that the claims of the home sellers were so individualized that predominance was precluded.

“First, defendants improperly conflate the existence of individualized proof as to each defendant’s conduct with the need for individualized inquiries,” the judge ruled. “While the evidence might vary as to the nature of each defendant’s participation in the conspiracy, the same evidence will be relied upon by plaintiffs and members of the class.”

The judge added that the defendants’ arguments dealt with the merits of the class action, and those arguments are “inapplicable at the class certification stage.”

Additionally, Judge Wood ruled that the two expert opinions that supported the suit’s claims sufficiently showed that the alleged antitrust conspiracy affected the home sellers. One area where the defendants attacked the expert opinions was on the experts’ use of “steering theory.”

The experts for the home sellers found that the alleged conspiracy made buyer-brokers “steer” their clients away from using multiple listing services that offered commission rates lower than the “inflated” rates, according to the ruling. But the defendants argued that, even without the alleged conspiracy, buyer-brokers would still try to get paid as much as possible for home sales and that home sellers would offer “similar” commission rates to get their homes sold.

. . .

The home sellers are represented by Susman Godfrey LLP, Hagens Berman Sobol Shapiro LLP, Handley Farah & Anderson PLLC, Cohen Milstein Sellers & Toll PLLC, Justice Catalyst Law and Teske Katz PLLP.

The complete story can be read on Law360 (subscription required).