The U.S. Supreme Court declined Monday to assess the certification of an enormous class of businesses that social media colossus Meta Platforms allegedly defrauded by inflating the reach of Facebook and Instagram advertisements, upping the odds of a major payout in the closely watched case.
In an order list, the high court said it won’t review a Ninth Circuit opinion that allowed a supersize cluster of companies to seek damages in what Meta has called “one of the largest fraud classes in the Ninth Circuit’s history, encompassing millions of diverse advertisers.”
Some advertisers contend Meta scammed them with bogus boasts about the “potential reach” of advertisements. Meta purported to quantify that reach by citing the number of individual users in an ad’s target audience, but the number it cited actually reflected accounts — a much larger category that includes duplicate or phony profiles, such as those for automated bots.
. . .
The plaintiffs are represented by Cohen Milstein Sellers & Toll PLLC and the Law Offices of Charles Reichmann.
A Colorado federal judge on Wednesday certified a nationwide class of stockholders in a securities suit alleging a senior health care company made misleading statements in an initial public offering that later caused stock prices to tank after a government audit exposed the falsehoods.
Three public pension funds based in Texas and Indiana have accused InnovAge Holding Corp. and parties behind its March 2021 IPO of falsely claiming its business providing seniors with comprehensive health care grew because of an innovative business model, when a government audit and media reporting later showed that growth came at the expense of senior citizens.
A September 2024 amended complaint — brought against InnovAge, its board, private equity firms that funded the IPO and the deal’s underwriters — argued InnovAge’s stock price for the IPO was set based on those misleading statements, only for prices to later plummet after the federal government suspended enrollment at one of the company’s centers.
. . .
The plaintiffs are represented by Julie G. Reiser, Molly J. Brown, Jan E. Messerschmidt, Brendan R. Schneiderman, Carol V. Gilden and Manuel J. Dominguez of Cohen Milstein Sellers & Toll PLLC and Cecil E. Morris and Adrian P. Castro of Fairfield & Woods PC.
The District of Columbia will get another chance to tweak its claims against landlord AvalonBay Communities and see if the changes are enough to prop up allegations that it has been using the property management platform RealPage to fix the price of rentals.
AvalonBay was let out of the litigation in May, but Superior Court Judge Todd E. Edelman handed down an order before the holidays that switched the dismissal from one with prejudice to one without so that D.C. could amend its claims.
. . .
D.C. is represented by Adam Gitlin and Amanda Hamilton of the Office of the Attorney General for the District of Columbia’s Public Advocacy Division and Emmy L. Levens, Robert A. Braun and Aaron J. Marks of Cohen Milstein Sellers & Toll PLLC.
The Second Circuit knocked down Argent Trust Co.’s bid to arbitrate a case alleging the wealth management company sold inflated shares to a barbecue chain’s employee stock ownership plan, after ruling in a similar case that identical arbitration contract language wasn’t enforceable.
A three-judge panel Friday granted Jamaal Lloyd and Anastasia Jenkins’ unopposed motion for summary affirmance in the appeal brought by Argent, which challenged a lower court’s order denying its request to compel arbitration in the Employee Retirement Income Security Act proposed class action. The ESOP participants said the Second Circuit’s recent rulings in Dejesus Cedeno v. Argent Trust Co. foreclosed the wealth management company’s appeal in their case, and the panel agreed in a one-page order.
“Plaintiffs are seeking the precise remedies that Cedeno was pursuing, and the arbitration clause in this case has the exact same language that was invalidated in Cedeno,” Lloyd and Jenkins said in their September motion. “There is simply no credible argument that the effective vindication holding in Cedeno does not apply to this case.”
In May, the Second Circuit held in Cedeno that Argent couldn’t arbitrate a case alleging it allowed an ESOP to be overcharged in a company stock sale while acting as the plan’s trustee. The court voided the arbitration agreement at issue because it prevented plan participants from seeking planwide remedies offered under ERISA.
The court then rejected Argent’s bid for an en banc rehearing of the decision in July. Argent sought high court review of the case, but its motion for certiorari was denied in November.
Lloyd and Jenkins also fought the arbitration of their suit by arguing that their arbitration agreement was invalid because it prevented them from pursuing rights available under ERISA — namely, by blocking representative actions and preventing employees from removing a fiduciary from the plan. A district judge denied the company’s arbitration bid in December 2022.
Argent appealed the ruling, but in their September motion, Lloyd and Jenkins said the resolution of Cedeno shuttered Argent’s interlocutory appeal. The court in Cedeno “invalidated a materially indistinguishable arbitration clause” compared with the contract at issue in their dispute, they said.
In Cedeno, the Second Circuit found the arbitration agreement couldn’t stand because it only allowed Cedeno to recover losses that he faced individually rather than seek planwide remedies. Lloyd and Jenkins said that they sought the same remedies as Cedeno and that the language at issue in their arbitration clause with Argent was identical to the language the Second Circuit invalidated in Cedeno’s contract.
. . .
Lloyd and Jenkins are represented by Rachana Pathak, Peter K. Stris, John Stokes and Bridget C. Asay of Stris & Maher LLP and by Ryan Wheeler, Michelle C. Yau and Kai H. Richter of Cohen Milstein Sellers & Toll PLLC.
The U.S. Supreme Court will hear Cornell University workers’ bid to revive a retirement plan lawsuit, the Ninth Circuit will weigh whether a nicotine surcharge dispute belongs in arbitration, and the Second Circuit will hear Yale University defend a win in a fight over retirement plan fees and investments.
Here are five cases benefits lawyers should have on their radar in the new year.
Cornell Workers Push High Court to Reinstate Their Case
The Supreme Court is expected to weigh in on the pleading standards for workers alleging retirement plan mismanagement, after justices in October granted Cornell University workers’ petition for review of a Second Circuit decision that ended their Employee Retirement Income Security Act suit.
Justices have scheduled arguments in the case for Jan. 22 in the appeal from Cornell workers, who challenged a November 2023 Second Circuit panel’s decision to affirm a summary judgment win for the university on claims recordkeeping fees were excessive.
The high court also approved the federal government’s request to argue as amicus on behalf of the university retirement plan participants who petitioned for review in the case. The government filed an amicus brief in support of petitioners earlier in December.
. . .
Michelle Yau, who chairs the employee benefits and ERISA practice at Cohen Milstein Sellers & Toll PLLC, said she’s also keeping a close eye on the Cornell case.
Yau said “there’s a lot of confusion” among the circuit courts about what’s required to plead a prohibited transaction claim under ERISA when service providers are involved.
Yau also took note of the narrow question that justices are taking up, which is focused on the pleading standards for Section 406(a)(1)(c) and not other types of prohibited transaction claims involving parties in interest to a plan, such as company insiders, for example.
“I think it’s important to put in context all the stuff that’s not going to be disturbed” by the case, Yau said.
The case is Casey Cunningham et al. v. Cornell University et al., case number 23-1007, in the U.S. Supreme Court.
Federal courts are poised in the new year to tackle big questions spurred by the U.S. Supreme Court’s April opinion easing the requirements for bringing workplace bias claims, including which anti-discrimination laws and job actions are subject to the new standard, and how the decision affects workplace diversity programs.
In Muldrow v. St. Louis, the justices unanimously disavowed the lofty legal hurdles that some lower courts have imposed to block workplace discrimination cases over employment actions considered to have less serious consequences for the worker. The high court held that employees need not show they faced “significant” harm from a workplace action to bring a discrimination lawsuit under Title VII, but rather “some harm.”
As the case arose in the context of Title VII of the Civil Rights Act, experts said it’s not yet clear if the new lowered harm threshold can be invoked by employees bringing claims under other anti-discrimination laws, like the Americans with Disabilities Act.
. . .
Harini Srinivasan, an attorney at worker-side firm Cohen Milstein Sellers & Toll PLLC who co-chairs the firm’s hiring and diversity committee, said the outcome of Scheer’s battle will have significant implications for Muldrow.
“How things play out with Scheer will be a really important spotlight on Muldrow,” she said.
A decision backing the EEOC’s position would make the Tenth Circuit at least the third federal appellate court to find that ADA plaintiffs can invoke Muldrow. The First and Eleventh circuits have already said they can.
This extension may also create support for the argument that the justices’ revamped harm test stretches to other laws, including the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866, a federal law prohibiting bias based on race, color and ethnicity in making and enforcing contracts.
Srinivasan said the ADA-focused dispute could serve as a kind of gateway to other discussions, as she said Title VII updates often are initially employed in the disability discrimination context before they’re applied to other laws.
“That has always tended to be the order of progression when there have been meaningful changes to Title VII,” Srinivasan said. “Practitioners will be watching that to understand how to champion Muldrow’s expansion to these other statutes.”
. . .
Muldrow’s Impact on DEI
Another topic of debate is whether Muldrow fortifies the current attacks on workplace DEI programs.
. . .
However, expert opinions differ. Cohen Milstein’s Srinivasan told Law360 that Muldrow isn’t the “silver bullet” against DEI that some have made it out to be.
“In DEI programs, by their nature, they don’t single out individuals or create disadvantages,” Srinivasan said. “When done well, they work to expand opportunities and level the playing field.”
What is the best way for more than 100 casinos that signed similar arbitration contracts to litigate their antitrust claims against a company that sells automated card-shuffling machines?
Is it for each of the casinos to arbitrate individually against the company, Light & Wonder (LNW.O), in more than 100 separate proceedings before an array of arbitrators who might well reach contradictory conclusions about legal and evidentiary issues?
Or is it for all of the more than 100 casinos to move forward as a class in a single arbitration before one arbitrator who will decide the fate of their theory that Light & Wonder engaged in sham patent litigation to monopolize the market for its machines?
The obvious answer, according to American Arbitration Association arbitrator John Wilkinson, is for the casinos to proceed as a class. In a Dec. 9 ruling made public on Tuesday, Wilkinson certified the casinos as an arbitration class, rejecting Light & Wonder’s arguments that their individual arbitration contracts are too dissimilar to allow the class to be certified.
“This landmark decision certifies what we believe to be the first-ever arbitration antitrust class, said Michael Eisenkraft, counsel for Mohawk Gaming Enterprises — a result that illustrates the ability of arbitrations to handle the most complex matters. This thorough ruling also denied the defendant’s motion for summary judgment. We look forward to advancing this case through the arbitration process.”
Progress Software and a group of more than 100 businesses, healthcare providers and government agencies can’t end a putative class action over a data breach tied to Progress’ MOVEIt file transfer tool, a Massachusetts federal judge said Thursday.
During a status hearing in the massive multidistrict litigation, U.S. District Judge Allison Burroughs denied an omnibus motion to dismiss filed on behalf of Progress, federal contractor Maximus Health Services and others, concluding that most of the plaintiffs had plausibly alleged they have suffered harm as a result of the breach, which involved millions of records obtained by Russian hackers last year.
The hundreds of pending complaints came following a May and June 2023 data breach by Russian hackers who then used it as leverage to extort payments from some of the entities. Some of the data has since been released on the “dark web,” according to the decision.
The plaintiffs are represented by Kristen A. Johnson of Hagens Berman Sobol Shapiro LLP, E. Michelle Drake of Berger Montague PC, Gary F. Lynch of Lynch Carpenter LLP, Douglas J. McNamara of Cohen Milstein Sellers & Toll PLLC, Karen H. Riebel of Lockridge Grindal Nauen PLLP and Charles E. Schaffer of Levin Sedran & Berman LLP.
A New York federal judge on Friday overruled objections from Bank of America unit Merrill Lynch to certify a class of investors, with a slightly extended class period, in a suit alleging the financial institution colluded with other major banks to avoid modernizing the stock loan market.
U.S. District Judge Katherine Polk Failla issued an opinion and order adopting a report and recommendation published by a magistrate judge in 2022 stating that the proposed class should be certified. However, Judge Failla extended the end of the class period from what the magistrate judge had recommended.
According to Friday’s order, U.S. Magistrate Judge Sarah L. Cave recommended that certification be granted to a class period that runs from Jan. 1, 2012, until Aug. 16, 2017, when the initial complaint in the suit was filed.
Judge Failla, on Friday, extended the end of the class period to Nov. 17, 2017, the date on which the amended, operative complaint was filed, saying the evidence presented by investors runs through that period.
The investor plaintiffs are represented by Quinn Emanuel Urquhart & Sullivan LLP and Cohen Milstein Sellers & Toll PLLC.
A New York federal judge agreed to revive in-court proceedings on a Luxottica ex-worker’s claims in a federal benefits lawsuit that she made on behalf of her pension plan, but held firm on the court’s earlier decision to compel individual arbitration of other claims.
In a 50-page opinion and order docketed Wednesday, U.S. District Judge Nusrat J. Choudhury partially granted Janet Duke’s motion for reconsideration of a 2023 order that had granted a motion to dismiss and to compel arbitration of her Employee Retirement Income Security Act suit.
Duke first sued Luxottica U.S. Holdings Corp., subsidiary Oakley Inc. and Luxottica’s pension plan and investment committee in 2021. Duke said the companies’ use of outdated mortality tables and an incorrect interest rate lowered pension plan participants’ joint-and-survivor annuity benefits below what they would have received if they elected a single-life annuity. Joint-and-survivor annuities provide an individual and their spouse benefits for life in exchange for lower payments, but ERISA requires that those pension plan benefits be actuarially equivalent.
Judge Choudhury said an arbitration provision in a dispute resolution agreement that Duke signed in 2015 was unenforceable as to claims brought on behalf of her pension plan. That’s because it would require Duke “to waive her statutory rights under Sections 409 and 502(a)(2) to bring representative claims on behalf of the plan and to seek plan-wide remedies,” Judge Choudhury said.
Judge Choudhury refers to the sections of ERISA that authorize individuals to sue on behalf of a benefit plan for fiduciary breach and for damages resulting from those breaches.
. . .
Duke and the proposed class are represented by Michelle C. Yau, Daniel Sutter and Ryan A. Wheeler of Cohen Milstein Sellers & Toll PLLC, Todd Jackson and Nina Wasow of Feinberg Jackson Worthman & Wasow LLP, Peter K. Stris, Rachana A. Pathak, Victor O’Connell, John Stokes and Dana Berkowitz of Stris & Maher LLP and Shaun P. Martin of the University of San Diego Law School.