A D.C. federal judge on Friday rejected former President Donald Trump’s claim that he has “absolute immunity” from a trio of lawsuits seeking to hold him liable for inciting last year’s deadly U.S. Capitol attack, saying the evidence shows that he assembled and directed thousands of supporters to march to the Capitol.
U.S. District Judge Amit P. Mehta wrote in his 112-page opinion that Jan. 6, 2021, “was supposed to mark the peaceful transition of power” as Congress voted to certify Joe Biden’s 2020 presidential victory, yet Trump instructed supporters at a “Save America” rally near the White House that “if you don’t fight like hell, you’re not going to have a country anymore.”
This was “an idea he had come up with himself,” Judge Mehta ruled, siding with 11 Democratic lawmakers who sued, as well as two U.S. Capitol Police officers who battled with rioters and are seeking damages for physical injuries and racist abuse they suffered. The lawsuits alleged that the riot, which left five people dead, including a Capitol Police officer, was a direct result of Trump and some of his allies’ actions.
The key argument in Trump’s bid to escape the suits is that the U.S. Supreme Court’s landmark 1982 decision in Nixon v. Fitzgerald establishes that a president cannot be sued for official actions during his presidency. But Judge Mehta rejected this argument, saying that denying a president immunity “from civil damages is no small step” but the “alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity.”
The judge added that while Trump’s campaign-style speech did touch on matters of public concern — his pledge to work on election laws in a second term — “the main thrust of the speech was not focused on policy or legislation” but to double down on his baseless claim that the election was fraudulent.
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Cohen Milstein Sellers & Toll PLLC partner Joseph Sellers, an attorney for the lawmakers who brought claims under the Reconstruction-era Ku Klux Klan Act, said the ruling is “a major victory for the rule of law, and demonstrates just how important the courts are for ensuring accountability.”
“This decision exhibits the finest tradition of our legal system — evaluating cases on their merits, not politics. We will continue to pursue justice through the courts and ensure accountability for this attack on our democracy,” Sellers added.
- Congress passed a bill banning mandatory arbitration for sexual harassment and assault claims.
- Employment attorneys say it could pave the way for more expansive worker protections.
- Efforts to ban mandatory arbitration clauses have been ramping up for years.
Workers alleging sexual assault and harassment scored a key victory last week, when Congress passed a bill that banned employers from forcing those claims to go to arbitration.
Based on the impact of previous legislation that emerged from the #MeToo movement, employment attorneys say it’s likely the bill will pave the way for more worker-friendly workplace changes—specifically policies that ban mandatory arbitration for other types of civil rights violations.
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First introduced in 2017 by Senators Kirsten Gillibrand and Senator Lindsey Graham, the bipartisan Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 amends the Federal Arbitration Act, so that employers can no longer put mandatory arbitration clauses applicable to sexual assault and harassment claims in employee contracts, offer letters, or handbooks.
The bill also bans clauses waiving a worker’s right to bring these claims on a class basis.
Once signed into law by President Biden, the bill will benefit alleged victims of sexual assault and harassment in several ways, said Julie Goldsmith Reiser, a Washington, D.C., partner at plaintiffs’ firm Cohen Milstein.
Because many companies work with a limited pool of arbitrators, and the arbitrators have an incentive to make sure they remain in that pool and continue to secure business, “mandatory arbitration has a way of … tipping the scales toward a company who is a repeat player with the arbitrator,” Reiser said. Other routes to resolving sexual assault and harassment claims—including litigation—could potentially level the playing field for accusers.
Most critically, however, the bill would give alleged victims a choice in how they want to pursue their claims. While COVID-19 court closures have resulted in delays for workplace sexual assault and harassment litigation nationwide, pushing many plaintiffs to turn to mediation or the quicker arbitration process instead, “what you want to get away from is the mandatory part of it,” Reiser said.
“I’m sure there are excellent arbitrators out there, I’m sure that arbitration can be faster, and I’m sure that in situations where people want to have their litigation resolved quietly and confidentially, that’s a good outcome,” Reiser said. “The only issue then becomes: do they have a choice? Are they making the choice with all the information out there or not?”
But the fact that the new law only covers sexual assault and harassment claims could bring practical challenges. If a single worker simultaneously brought sexual harassment and race discrimination claims against a company, for example, “It’s possible that the courts may end up splitting the claim and say, ‘Well, you can’t go to arbitration for this claim. But you can go to arbitration on that claim,’” said Wasserman. “So are people going to be litigating in two separate forums?”
Both Wasserman and Reiser opined that mandatory arbitration bans could eventually extend to more types of employment claims. The impact of other pieces of legislation spawned by the #MeToo movement may be instructive. In California, for example, a law that went into effect in 2019 banned the use of confidentiality clauses in settlements or severance agreements related to workplace sexual assault or harassment. Last month, another bill in the state known as the Silenced No More Act extended the same ban to all types of harassment, discrimination, and retaliation in the workplace.
Another California bill that came out of the #MeToo movement, which required corporate boards for certain companies to meet a quota for female board members, was similarly expanded two years after it was passed in 2018. In 2020, the state passed a second bill mandating a similar quota for board members from other underrepresented communities.
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Reiser said she is hopeful the legal landscape will continue to shift. “Everybody should feel safe at work,” Reiser said.
“Usually if somebody is willing to harass, they’re also doing softer forms of discrimination,” she said, adding that, ideally, arbitration bans “will expand to cover these.”
Congress’ recent passage of legislation banning mandatory arbitration for sexual harassment and assault claims marked a rare bipartisan effort to make a meaningful change to federal employment law.
Experts told Law360 that aside from legislation created in response to the COVID-19 pandemic, they believe the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is the first big workplace reform law since the Lilly Ledbetter Fair Pay Act of 2009, as well as the most significant arbitration law in recent memory.
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It’s a Big Deal for Everybody
If signed by Biden, the bill will modify the Federal Arbitration Act to invalidate predispute mandatory arbitration agreements for workers who claim they were subjected to sexual harassment or assault. Proponents of the bill have said it would give employees the ability to choose where and how they pursue such claims.
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There remains widespread disagreement over whether the arbitration process is fair, or favors employers over workers. Several experts also noted that some victims of workplace sexual misconduct may in fact prefer arbitration because of its confidential nature, given the intimate nature of their claims.
But Julie G. Reiser, a partner at plaintiff-side Cohen Milstein Sellers & Toll PLLC, said she’s “relieved” that the bill passed, saying it at least gives victims and survivors agency in how they pursue those claims.
“I do think there are instances where the parties can agree to an arbitrator, after the misconduct is known, and that’s their choice. But the idea that as a term and condition of your employment, you must agree to mandatory arbitration, is what bothers me,” she said.
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Tip of the Iceberg?
Adler-Paindiris noted that the Biden administration has expressed interest in broadening the arbitration ban to other kinds of claims.
“I think this could be the tip of the iceberg,” she said. “I think that this type of exclusion about mandatory arbitration could be expanded.”
Cohen Milstein’s Reiser referenced California’s “Silenced No More” Act, which went into effect last month and broadened restrictions on the use of nondisclosure agreements when settling employees’ bias and harassment lawsuits. She said she’s rooting for bipartisan support for a similar law on the federal level.
“It would not surprise me if this legislation gets expanded in several years,” she said of the new federal bill, later adding, “It would be even better if the statute extends to other forms of workplace discrimination, including race.”
Credit Suisse has agreed to pay investors $81 million to be the first bank to exit a putative New York federal court class action accusing banks of colluding to kill competition in the stock loan market, the investors said in a bid for preliminary approval of the so-called icebreaker deal Friday.
As a part of the deal, Credit Suisse AG has agreed to cooperate with the investors as they go after the remaining banks in the suit, including Morgan Stanley & Co. LLC, Goldman Sachs & Co. LLC, and JPMorgan Chase Bank NA, the investors said in their bid for approval. The settlement represents between 8% and 17% of Credit Suisse’s proportional share of the damages the investors believed they’ve suffered.
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Stock lending is a temporary transfer of a stock from one investor to another, and it serves as the foundation of short selling. The prime broker defendants are all major players in the stock lending business — their market share has reached as much as 80% in recent years, according to the investors — and serve as middlemen between lenders and borrowers.
The suit was filed in 2017 by a group of public pension funds alleging that these prime brokers circled the wagons when innovation threatened their entrenched positions in the form of electronic platforms offered by startups like Quadriserv and SL-x. The prime brokers agreed to boycott the companies to “starve them of liquidity” and then used EquiLend LLC — a stock loan platform they jointly controlled — to buy up their weakened rivals and shut them down, according to the suit.
The antitrust suit has been in discovery since 2018, when U.S. District Judge Katherine Polk Failla rejected the banks’ attempts to dismiss the allegations. In that ruling, she said the investors have alleged sufficient antitrust standing to pursue their claims.
The investors moved for class certification in February 2020 and asked to appoint Quinn Emanuel and Cohen Milstein as co-lead counsel.
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The investors are represented by Quinn Emanuel Urquhart & Sullivan LLP, Safirstein Metcalf LLP, and Cohen Milstein Sellers & Toll PLLC.
Institutional investors leading sprawling multidistrict litigation against nearly a dozen megabanks that allegedly colluded to control the interest rate swaps market told a New York federal judge Friday they’ve reached a $25 million “icebreaker” settlement with Credit Suisse.
Along with the $25 million cash award, the proposed settlement calls for Credit Suisse Group AG to cooperate with the litigation against the remaining defendant banks, including providing up to four trial witnesses, according to the motion for preliminary approval.
Taxes, attorney fees, service awards and expenses will be taken out of the fund before it is distributed, the motion states. In exchange, the investors said they will release all claims against Credit Suisse.
The investors said they also agreed to reduce the amount of any aggregate monetary final judgment against the remaining defendants — including JPMorgan Chase & Co., Bank of America, Royal Bank of Scotland Group PLC, Goldman Sachs Group Inc. and Deutsche Bank AG — by a little more than 6%.
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The investors are represented by Cohen Milstein Sellers & Toll PLLC, Quinn Emanuel Urquhart & Sullivan LLP, Susman Godfrey LLP, Jacobs Burns Orlove & Hernandez and Labaton Sucharow LLP.
Remember how the U.S. Supreme Court’s 2019 ruling in Lamps Plus, Inc v Varela was supposed to be lights out for classwide arbitration?
Well, it looks like reports of the demise of class arbitration may have been at least slightly exaggerated, after a decision this week from the American Arbitration Association in an antitrust case brought by the Akwesasne Mohawk Casino Resort against gaming machine companies Scientific Games Corp and Bally Technologies Inc.
The casino alleges that the companies are monopolizing the market for automatic card-shuffling machines, using anticompetitive tactics to gain control and then inflating prices for casinos. Its contract with the gaming machine companies did not specifically prohibit or permit classwide arbitration.
But AAA arbitrator John Wilkinson ruled that the “exceedingly broad language” of the arbitration clause – which mandates arbitration of “any and all controversies, disputes or claims of any nature arising directly or indirectly out of or in connection with this agreement” — encompassed classwide claims.
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Mohawk casino counsel Michael Eisenkraft and Manuel John Dominguez of Cohen Milstein Sellers & Toll told me that the AAA arbitrator’s holding on ambiguity was the key to evading Lamps Plus precedent barring classwide arbitration.
“If it’s ambiguous, you’re handcuffed,” Dominguez said. “What we wanted to argue was that the contract was not ambiguous.”
Cohen Milstein got involved in the Mohawk casino’s case after the Supreme Court’s Lamps Plus ruling, Eisenkraft said, so the firm was well aware of the risk that classwide arbitration might not be allowed. And if the arbitrator had found that classwide claims were barred, he said, it might not have been economically feasible for an individual casino to arbitrate a claim, given the high cost of antitrust litigation. But Cohen Milstein believed that because the Mohawk casino’s arbitration clause called for arbitration of “any and all” claims, including claims indirectly related to its own, the clause was worded broadly enough to include classwide claims.
AAA’s Wilkinson agreed. The arbitration agreement that the Supreme Court examined in Lamps Plus, he noted, was tailored for individual employees, using such specific terms as “I,” “me” and “my.” Those are critical words in the interpretation of the scope of arbitration contracts, Wilkinson said. “The absence of such limiting, binary language is of utmost significance,” the arbitrator said.
“The lesson,” said casino counsel Eisenkraft, “is that ‘everything’ means everything. If you want to cut something out, you have to say so.” This contract, he added, was signed in 2015, after classwide arbitration had become an issue at the Supreme Court. It was common by then for arbitration contracts to include a specific waiver of classwide claims, Eisenkraft said, but the Mohawk casino’s provision was silent on that issue.
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Assuming that Wilkinson’s classwide arbitration decision is not overturned in court, it’s going to be interesting to see how the case plays out. Eisenkraft and Dominguez said they are not sure how many other casinos signed arbitration agreements like their client’s contract with Scientific Gaming and Bally, though they estimate there will be hundreds of class members.
Hundreds of consumer class actions allege household items like spices, baby food, sunscreen and deodorant contain toxic substances, such as arsenic, lead and benzene.
What You Need to Know
- Half a dozen class actions target spices, the latest household items alleged to contain toxic metals.
- More than 100 lawsuits claim toxic metals are in baby food, with at least one judge refusing to dismiss cases over Plum Organics.
- The lawsuits all cite scientific research from nonprofit organizations, such as Healthy Babies Bright Futures and Consumer Reports.
Dried oregano, thyme and an array of other spices are the targets of half a dozen class actions, the latest household items alleged to contain dangerous levels of toxic substances unbeknownst to consumers.
The spice lawsuits, filed in the past month, join more than 100 consumer lawsuits across the country already claiming the same metals are in baby food. Other class actions target sunscreen and deodorant containing benzene, a known carcinogen.
The lawsuits all cite scientific research from nonprofit organizations, such as Healthy Babies Bright Futures and Consumer Reports, which found trace amounts of toxic substances in the products. The cases are still in their early stages: federal judges mostly have consolidated the lawsuits and appointed lead counsel. But the class action bar is enthusiastic about the success of the lawsuits.
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The cases have attracted big-name law firms. Defendants brought in White & Case, Jenner & Block, Dechert and Covington & Burling. Plaintiffs firms include Cohen Milstein Sellers & Toll, Labaton Sucharow, Levin Sedran & Berman and Lockridge Grindal Nauen.
Most of the firms specialize in class actions but not personal injuries or, in some cases, consumer law.
Cohen Milstein, for instance, has a diversified practice portfolio in which about 10% are consumer cases, said the Washington, D.C., firm’s managing partner, Steven Toll.
The firm submitted leadership applications in the lawsuits against Hain Celestial, maker of Earth’s Best brand of baby food, now coordinated in the Eastern District of New York, and Gerber, consolidated in the Eastern District of Virginia.
“It’s not a new area for us, but we’re very selective,” Toll said of the firm’s consumer cases. “Every once in a while, if a case may jump out because it’s high profile and looks strong on the merits, we’ll get involved.”
A Native American tribe that runs a casino resort in upstate New York can pursue class arbitration in its antitrust case against two suppliers of automatic card shufflers, an arbitrator has ruled.
Mohawk Gaming Enterprises LLC, doing business as Akwesasne Mohawk Casino Resort, is suing Scientific Games Corp. and Bally Technologies Inc., which sell gambling equipment, on behalf of a putative class claiming that the suppliers monopolized the market for shuffling devices.
The sole issue decided in the American Arbitration Association ruling Tuesday was whether the arbitration clause of a license and lease agreement that Mohawk signed for the gambling supplies allows the plaintiff to move ahead on behalf of a class under the tribunal’s rules.
Arbitrator John Wilkinson said the language of the clause allows class arbitration, taking into account the case law of three key U.S. Supreme Court decisions related to the issue. The high court rulings are Stolt-Nielsen SA v. Animalfeeds International Corp., Oxford Health Plans LLC v. Sutter, and Lamps Plus Inc. v. Varela, all of which the arbitrator noted have set the “ground rules” for interpreting the clause in Mohawk’s agreement.
The arbitrator said the disputed clause is “far broader” than either AAA’s standard arbitration clause or the cases cited by the respondents in seeking to deny class arbitration. He also cited a lack of limiting language in the Mohawk clause.
Arbitrators have “consistently held that an arbitration clause which does not specifically mention class arbitration but contains significantly broader language than the AAA clause is sufficiently inclusive” to allow for it, the decision says.
An attorney for the Mohawk Tribe told Law360 in a statement that the decision was a big win given the high court holdings on arbitrability.
“This ruling shows that, even under current Supreme Court jurisprudence, there remains a viable path forward to class arbitration,” said the attorney, Manuel John Dominquez of Cohen Milstein. “This is important because, without the benefits of scale provided by class arbitration, many claims could never be brought.”
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The proposed class alleged that Scientific Games and Bally Technologies violated the Sherman Act, claiming they “achieved market dominance by fraudulently procuring patents and by repeatedly and illegally using those patents as the basis for sham claims of patent infringement against potential competitors and new entrants,” according to the AAA ruling.
According to Mohawk, “this practice left respondents free to set inflated prices without concern of being undercut by others or losing market share.”
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Mohawk Gaming is represented by Michael Eisenkraft, Manuel J. Dominguez, Robert A. Braun and Leonardo Chingcuanco of Cohen Milstein Sellers & Toll PLLC, Michael Steifman and Fran Rudich of Steifman LLP and Joseph Goldberg, David A. Freedman and Vincent J. Ward of Freedman Boyd Hollander Goldberg Urias & Ward PA.
A Black former Miami Dolphins head coach’s blockbuster suit accusing the NFL of systemic discrimination demonstrates that even employers with strong policies aimed at boosting diversity can get flagged for bias violations if those policies aren’t carefully applied, experts say.
Brian Flores filed his Manhattan federal court class action against the league weeks after being controversially fired by the Dolphins and days after he was passed over for a job as head coach of the New York Giants in favor of Brian Daboll, a white coach from the Buffalo Bills’ staff.
The suit includes claims that the number of Black head coaches in the NFL is woefully out of step with the league’s predominantly Black player population, despite the NFL’s so-called Rooney Rule, which requires teams to interview at least two external minority candidates for head coaching positions. Flores also alleges that his interview with the Giants was a sham to comply with the Rooney Rule because text messages he received from New England Patriots head coach Bill Belichick indicated the decision to hire Daboll had already been made.
Regardless of whether Flores’ suit proves to be successful, employment attorneys say his claims show the danger that lurks for employers when there is a chasm between their diversity policies and the way hiring and promotion decisions are actually made.
“I am interested to see what happens with this particular case, but really hope that it doesn’t deter employers who are actually wanting to find policies that will make a difference,” said Christine Webber, co-chair of plaintiffs-side firm Cohen Milstein Sellers & Toll PLLC’s Civil Rights & Employment practice.
While many companies follow through on enforcing their diversity policies, Webber said there “are plenty that just see it as ‘check-a-box,'” in which they “establish a policy and call it good.”
“Companies are all over the place, but far too many, I would say, [believe] establishing a policy is like, ‘OK, now we can say we have a policy so, you know, we’re fine,’ without really doing the work needed to educate their managers and set up systems that will actually be effective,” Webber said. “There are companies that look fine on paper, but the paper just doesn’t reflect what’s really happening on the ground for employees.”
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Regarding the allegation in Flores’ suit that his rejection for the Giants job was made before his interview ever took place, Cohen Milstein’s Webber said it’s the sort of thing she sees happen when there is an opening for people to make decisions outside a company’s hiring protocols without incurring consequences.
While a policy on paper may be worthwhile for nudging people to truly consider a broader pool of candidates than they otherwise might, Webber said its effectiveness hinges on whether an employer enforces it and “keep[s] people from making decisions outside the system.”
The ways rogue actors can do so, she said, may be by drafting job announcements in such a way that they match the credentials of a preferred candidate or by conducting interviews “that are really for show.”
To avoid that and make sure rules are being followed, employers can consider things like tying a portion of a manager bonus to complying with a variety of policies, specifically those that address diversity, and having equitable compensation among members of their team, according to Webber.
“I think the other thing is [to] listen to their employees and actually make it safe for employees to give them feedback, because employees tend to sort of see where the gaps fall between [an] announced policy and what’s happening in practice,” Webber said. “That’s information that employers can use to tweak their systems and make improvements. But they’re not going to get that feedback if their response to information is to get defensive and shut it down and allow managers to retaliate against those who bring the issues to their attention.”
The Ninth Circuit on Thursday denied an objector’s petition to rehear a decision that gives $13 million to internet privacy advocates and lawyers to end allegations that Google’s Street View car fleet illegally gathered Wi-Fi network data, but no money for 60 million class members.
On a 2-1 vote, the panel that issued the December 2021 decision ruled on Thursday to deny the request for a rehearing before the appellate court’s full bench.
“The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc,” Thursday’s decision states.
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The contested deal requires Google to fork over roughly $9 million to nine nonprofit organizations with a history of addressing online consumer privacy issues and $3.25 million in attorneys’ fees. However, it does not call for monetary relief to settlement class members.
A California federal judge signed off on the pact in March 2020, despite objections from Lowery and several state attorneys general.
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The plaintiffs are represented by Elizabeth J. Cabraser and Melissa Gardner of Lieff Cabraser Heimann & Bernstein LLP, Mary Ann Geppert, Jeffrey L. Kodroff and John A. Macoretta of Spector Roseman & Kodroff PC, and Daniel A. Small and The Ninth Circuit on Thursday denied an objector’s petition to rehear a decision that gives $13 million to internet privacy advocates and lawyers to end allegations that Google’s Street View car fleet illegally gathered Wi-Fi network data, but no money for 60 million class members. On a 2-1 vote, the panel that issued the December 2021 decision ruled on Thursday to deny the request for a rehearing before the appellate court’s full bench. “The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc,” Thursday’s decision states. . . . The contested deal requires Google to fork over roughly $9 million to nine nonprofit organizations with a history of addressing online consumer privacy issues and $3.25 million in attorneys’ fees. However, it does not call for monetary relief to settlement class members. A California federal judge signed off on the pact in March 2020, despite objections from Lowery and several state attorneys general. . . . The plaintiffs are represented by Elizabeth J. Cabraser and Melissa Gardner of Lieff Cabraser Heimann & Bernstein LLP, Mary Ann Geppert, Jeffrey L. Kodroff and John A. Macoretta of Spector Roseman & Kodroff PC, and Daniel A. Small and Robert W. Cobbs of Cohen Milstein Sellers & Toll PLLC.