The U.S. government told a Massachusetts federal court that tenant-screening firm SafeRent Solutions is subject to the Fair Housing Act, giving a boost to claims by two would-be renters that the company’s algorithm was unfairly used against them.
In a brief filed Monday, the U.S. Department of Justice and attorneys at the U.S. Department of Housing and Urban Development said previous court cases, including an active one in Connecticut involving SafeRent Solutions LLC, support its position that the company can be liable for discrimination even if it is not a direct housing provider.
“The language of the FHA plainly focuses on prohibited acts, not specific actors,” according to the government’s brief.
Since SafeRent, formerly known as CoreLogic Rental Property Solutions, does not share details about its algorithm, housing providers effectively have to rely on the tenant-screening firm to decide whether to approve or deny a rental application, the brief said.
The two women who sued SafeRent and Metropolitan Management Group said their applications for apartments in the Boston area were denied because of their credit history. They said the defendants’ reliance on “SafeRent scores” for tenants derived from the algorithm had a disparate impact on Black, Hispanic and low-income people, who tend to have lower credit scores than white applicants.
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The plaintiffs 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.
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The recent explosion of litigation accusing a wide range of companies of violating wiretap and video privacy laws through the technology they deploy on their websites will continue to proliferate in 2023, joining robocall and biometric privacy disputes that have long plagued businesses and also show no signs of abating.
Here, Law360 looks at the privacy litigation and trends that bear watching this year.
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Meta Pixel Takes Center Stage
Meta Pixel, a code snippet and user tracking tool embedded in many websites, has also prompted a wave of litigation against both the companies that use the code and Meta Platforms Inc. itself.
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The Meta Pixel is also at the heart of separate litigation that the social media giant is currently embroiled in over its alleged collection of confidential patient information and tax filing data.
An anonymous Maryland hospital patient launched a putative class action in June accusing Meta of violating the medical privacy of millions of Americans through the Pixel tool. The lawsuit claimed that the company knows — or should have known — that the web tracker is being improperly used on hospital websites, resulting in Facebook receiving such data as when a person registers as a patient, signs in to a patient portal or sets an appointment, among other information.
Meta has countered that while its Pixel tool is offered as a code that allows website developers to gather analytics information about people who visit their websites, it tells health care providers not to send Meta sensitive data.
More recently, two anonymous Facebook users hit Meta with another suit in December accusing the company of breaking privacy and taxpayer protection laws by collecting sensitive information from popular tax filing websites H&R Block, TaxAct and TaxSlayer through its Pixel tool.
These disputes, particularly the one related to the transfer of health care information, have “opened up a Pandora’s box of data privacy issues,” according to Aloke Chakravarty, a partner at Snell & Wilmer LLP.
“They’ve added scrutiny as to what data is made available to web beacons, how they are configured and who configures them, and the specter that more data than expected may have been incidentally captured from health care providers and more than consumers and clients may have expected,” Chakravarty said.
A bulletin about online tracking technologies released by the U.S. Department of Health and Human Services’ Office for Civil Rights on Dec. 1 is also poised to fan the flames of this fight, according to attorneys.
The guidance lays out the obligations of entities covered by the Health Insurance Portability and Accountability Act when using online tracking technologies like Meta Pixel or Google Analytics that collect and analyze information about how internet users interact with a regulated health provider’s website or mobile app.
According to HHS, “regulated entities are not permitted to use tracking technologies in a manner that would result in impermissible disclosures of [electronic protected health information] to tracking technology vendors,” an assertion that plaintiffs are likely to seize on in litigation challenging technology like the Meta Pixel on hospital websites, attorneys say.
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The cases are In Re Meta Pixel Healthcare Litigation, case number 3:22-cv-03580, and Doe et al. v. Meta Platforms Inc., case number 3:22-cv-07557, both in the U.S. District Court for the Northern District of California.
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Two Massachusetts renters and an advocacy group asked a federal judge not to dismiss their lawsuit against SafeRent Solutions LLC, saying they can prove the company’s scoring tool disproportionately denies housing to people of color by using credit scores.
Nancy Louis and Monica Douglas, along with Community Action Agency of Somerville Inc., told Judge Angel Kelley on Monday to deny SafeRent’s motion to dismiss the case for failure to state a claim and lack of jurisdiction. Louis and Douglas said their discrimination complaint clearly shows the company is in violation of both state and federal fair housing laws by creating an unnecessary barrier to accessing housing.
“[R]elying on such data in scoring potential tenants disproportionately impacts Black and Hispanic tenants, and those with low income, like those who use housing vouchers,” Louis and Douglas said in the memorandum filed Monday. “Black, Hispanic and low-income individuals all have lower credit scores and worse credit history compared to white individuals. That means that SafeRent assigns these groups disproportionately lower scores than white applicants, which, in turn, causes the disproportionate denial of housing.”
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The plaintiffs 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.
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Pharmaceutical giant Janssen is refusing to comply with previous orders for discovery, impeding the progress of a suit alleging that it paid kickbacks to doctors to boost sales of certain drugs, attorneys for a relator told a Massachusetts federal judge Thursday.
In a memorandum to U.S. District Chief Judge F. Dennis Saylor, relator Julie Long said Janssen had not complied with previous orders to produce answers about its affirmative defenses in the False Claims Act case, several “discrete categories of highly relevant documents” that were supposed to be turned over three months ago, as were all documents being withheld under a claim of privilege.
“The company’s stonewalling and evasiveness are stymieing progress, including delaying the creation of the court-ordered plan for searching for and producing relevant documents from current and former employees who had significant involvement,” the memorandum said. “Janssen cannot be permitted to continue ignoring the court’s orders and the federal rules.”
The 120-page qui tam action was first filed in 2016. It alleged that beginning around 2003, Janssen provided a “wide variety of practice management and infusion suite operational support and consulting services and related programs” to some rheumatology and gastroenterology practices. The services were said to have helped the doctors open in-office infusion suites and induce them to prescribe and infuse Janssen’s rheumatoid arthritis drugs Remicade and Simponi ARIA.
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Julie Long is represented by Jonathan Shapiro and Lynn G. Weissberg of Stern Shapiro Weissberg & Garin and Casey M. Preston, Gary L. Azorsky, Jeanne A. Markey, Leslie Kroeger, Theodore Jon Leopold, Diana L. Martin and Poorad Razavi of Cohen Milstein Sellers & Toll PLLC.
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Cohen Milstein Sellers & Toll PLLC will receive $4.25 million of a $6.25 million global settlement they brokered on behalf of investors in aircraft company Boeing who accused the company’s brass of concealing issues with its 737 Max jet, an Illinois federal judge said.
In the order, U.S. District Judge Harry D. Leinenweber said the legal team representing lead plaintiff Seafarers Pension Plan in derivative litigation against Boeing could have their requested seven-figure fee and expense award, calling the sum “fair and reasonable.” He also granted the pension plan’s request for a $15,000 service award.
The legal team requested the sum in November, telling Judge Leinenweber that the global settlement included claims that had been “vigorously contested” in Illinois, in Delaware and before the Seventh Circuit.
They added that the proposed settlement agreement also contained “valuable corporate governance benefits” that include the company revising its bylaws to allow Boeing investors to bring derivative claims in federal courts in both Delaware and the Eastern District of Virginia, where Boeing is now headquartered.
A Florida federal judge ruled Thursday that banana grower Chiquita Brands International Inc. need not face certain claims over its financial support for a defunct Colombian paramilitary group, finding no evidence that the relatives of some plaintiffs were killed by that organization.
The decision, which U.S. District Judge Kenneth A. Marra issued in a 105-page order, terminates seven bellwether suits Chiquita was facing in multidistrict litigation over its support for Autodefensas Unidas de Colombia, a right-wing group accused of killing thousands of people.
Judge Marra’s ruling also allows 10 other bellwether cases to proceed to trial after he identified enough evidence that the plaintiffs’ relatives were killed or disappeared by the AUC during armed conflict in Colombia in the 1990s and early 2000s. Those plaintiffs, the judge said, have at least presented a “triable issue” on the existence of an AUC link to their family members’ eventual fates.
The Thursday decision added to a flurry of recent activity in the long-running MDL, which seeks to hold Chiquita liable for hundreds of AUC-linked deaths or disappearances due to the company’s financial support for the paramilitary group, which amounted to more than $1.7 million.
Earlier this year, the Eleventh Circuit revived 12 cases Judge Marra dismissed in 2019, out of an initial batch of 50 bellwether lawsuits. In its Sept. 6 ruling, the appeals court found the judge had wrongly rejected some of the plaintiffs’ evidence that the AUC was responsible for the deaths of their relatives.
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The plaintiffs are represented separately by Paul Wolf, Jack Scarola of Searcy Denney Scarola Barnhart & Shipley PA, James K. Green of James K. Green PA, Richard Herz, Marco Simons, Marissa Vahlsing and Sean Powers of EarthRights International, John de Leon of the Law Offices of Chavez & De Leon PA, Agnieszka M. Fryszman of Cohen Milstein Sellers & Toll PLLC, Paul L. Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman LLP, Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky, Arturo Carrillo of the Colombian Institute of International Law, Jonathan C. Reiter of the Law Firm of Jonathan C. Reiter, and by Ronald Guralnick of Ronald Guralnick PA.
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A New York federal judge refused to send to arbitration a suit claiming Argent Trust let a barbecue chain’s employee stock ownership plan overpay for company shares, ruling Tuesday that the plan’s arbitration agreement is unenforceable because it denies rights afforded under federal benefits law.
U.S. District Judge Denise L. Cote said Jamaal Lloyd and Anastasia Jenkins are not obligated to arbitrate their claims brought under the Employee Retirement Income Security Act against Argent, the trustee of W BBQ Holdings Inc.’s ESOP, after finding that the agreement prevents employees from seeking relief that federal benefits law provides.
“The plaintiffs are correct; the plan’s arbitration clause may not be enforced,” Judge Cote said. “The plan’s arbitration procedures prohibit representative actions seeking relief on behalf of a plan even though ERISA expressly provides for such actions.”
Lloyd sued Argent and several of the barbecue chain’s shareholders in May, alleging its workers lost millions of dollars in retirement savings when shareholders sold 400,000 shares of common stock to the ESOP in July 2019 at above fair market value. The shares were sold for $99 million, but by the end of 2016, the value of the shares plummeted to $28.9 million, Lloyd and Jenkins said.
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Lloyd and Jenkins are represented by Michelle C. Yau, Kai H. Richter, Daniel R. Sutter, Ryan A. Wheeler and Michael Eisenkraft of Cohen Milstein Sellers & Toll PLLC.
A D.C. Circuit panel seemed disinclined Wednesday to say former President Donald Trump has absolute immunity for his Jan. 6, 2021, rally speech given the “colorable case of incitement” at issue, but wrestled with how to structure a limit on presidential immunity.
During a nearly two-hour oral argument, U.S. Circuit Judge Gregory Katsas said several times that the hard thing about the case for him is there being at least a “colorable case of incitement” in the then-president’s Jan. 6 speech before his supporters attacked the Capitol. In a consolidated appeal of three cases brought by Democratic lawmakers and two U.S. Capitol police officers seeking to hold Trump liable for psychological or physical harm they suffered from the Capitol attack, Trump is arguing a D.C. district judge wrongly denied him presidential immunity.
Judge Katsas challenged Trump’s attorney to explain any functional or historical support for immunizing the president against actual incitement of rioting or lawless acts, and said he does not think there would be broad impacts on the office of the presidency if immunity is denied here.
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U.S. Circuit Judge Sri Srinivasan asked Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, who argued for the plaintiffs, to give the court direction on what standard to use when determining whether presidents lose their immunity. Sellers said the test should be whether a complaint plausibly alleges the president took action that “disrupted or blocked the discharge of duties by a co-equal branch of government” — as he says happened here when Trump supporters interrupted the Congressional count of electoral college ballots.
Judge Katsas suggested such a test may clash with First Amendment speech protections, saying it would “seem odd to me to say a president would lose immunity for inciting activity where a private party would have a substantive defense under Brandenburg.”
“To me, that’s where the rubber meets the road,” the judge added.
He said he has printed out Trump’s speech from the rally and read it a number of times. The worst parts of the speech — lines like Trump telling his supporters to “fight like hell”— don’t compare to more explicit statements other courts have determined are incitement, he said.
Sellers said the speech cannot be viewed in a vacuum but must be considered in context with the months Trump spent sowing disbelief about the 2020 election results and riling up his supporters to believe the election had been stolen — what Judge Katsas said can be summed up as the “powder keg.”
Sellers argued that, even if no single set of words spoken by Trump is tantamount to the Brandenburg cases, the whole of the circumstances makes clear the president ignited the situation.
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The plaintiffs are represented by Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC, Janette McCarthy-Wallace, Anthony P. Ashton and Anna Kathryn Barnes of the NAACP, Robert B. McDuff of Mississippi Center for Justice, Patrick A. Malone, Daniel Scialpi and Heather J. Kelly of Patrick Malone & Associates PC, Phillip Andonian and Joseph Caleb of Caleb Andonian PLLC, Matthew Kaiser and Sarah R. Fink of Kaiser Dillon PLLC, and Cameron Kistler, Erica Newland, Kristy L. Parker, Jacek Pruski, Anne Tindall, John Paredes, Genevieve C. Nadeau, Benjamin L. Berwick and Helen E. White of United To Protect Democracy.
Law360 Pulse Prestige Leaders report has named Cohen Milstein to its annual industry “Prestige Leader” list, recognizing the top 100 law firms most-well regarded by the Law360 editorial team. Notably, Cohen Milstein is only one of two plaintiffs law firms named to the list.
The Law360 Pulse editorial team compiles data from Law360 surveys, proprietary awards and the LexisNexis suite of research tools to measure four equally weighted key indicators of prestige.
Law360 criteria includes: financial performance, which looks at profits per partner and revenue per lawyer (for firms that do not disclose such information, such as Cohen Milstein, this data is assessed via reported settlements and other measurable data that is in the public domain); desirability, which measures how frequently firms were named by law students and attorneys as their top choice firms for work; editorial awards, or the number of Law360 awards a firm has captured over the past year; and news sentiment — the number of positive stories about the firm that appear in more than 20 respected legal publications.
Read more about report on Law360 Pulse.
CHICAGO– Today, the City of Chicago announces that Uber has agreed to a settlement stemming from the City’s investigation into UberEats’ and Postmates’ practices of listing Chicago restaurants on their platforms without the restaurants’ consent, being in violation of the City’s emergency fee cap ordinance, and other advertising-related conduct. The City acknowledges Uber’s cooperation in bringing this investigation to closure.
“Today’s settlement reflects the City’s commitment to creating a fair and honest marketplace that protects both consumers and businesses from unlawful conduct,” said Mayor Lightfoot. “Chicago’s restaurant owners and workers work diligently to build their reputations and serve our residents and visitors. That’s why our hospitality industry is so critical to our economy, and it only works when there is transparency and fair pricing. There is no room for deceptive and unfair practices.”
Under the settlement terms:
- In September 2021, in response to the City’s discovery of unlawful conduct, Uber quickly repaid $3,331,892 to Chicago restaurants that had been charged commissions exceeding 15%, in violation of the City’s emergency fee cap ordinance.
- Uber will pay an additional $2,250,000 to Chicago restaurants that were charged commissions in excess of the limits set by the City’s emergency fee cap.
- After reaching out to Uber in 2021, the company removed all remaining Chicago restaurants that had been listed on Uber’s platforms without consent and agreed not to list Chicago restaurants without consent in the future.
- Uber will pay $500,000 to Chicago restaurants that Uber listed on its meal delivery platforms without consent and that do not currently contract with Uber.
- Uber will provide $2,500,000 in commission waivers to Chicago restaurants that were listed on Uber’s platforms without consent and that do not currently contract with Uber.
- Uber will pay $1,500,000 to the City to cover the costs and fees of its investigation.
“We delivered on our commitment to protect consumers and businesses,” said Kenneth J. Meyer, Commissioner, Chicago Department of Business Affairs and Consumer Protection. “The settlement is the result of the City acting swiftly and holding companies accountable for deceitful practices.”
“We welcome any relief provided to the independent restaurants that struggled throughout the pandemic and continue to shoulder the rising costs of doing business,” said Sam Toia, President and CEO, Illinois Restaurant Association. “No third party delivery company should be listing restaurants without their consent and all third party companies should have been following the emergency cap imposed during the pandemic. Our restaurants will receive immediate benefit from this settlement.”
Restaurants previously listed on Uber’s platforms without consent should visit Chicago.gov/UberSettlement and follow the instructions to receive financial relief and commission waivers. Restaurants that were charged commissions in excess of the fee cap in 2021 will receive payment automatically from Uber.
A link to the complete Settlement Agreement can be found at Chicago.gov/UberSettlement.
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