A group of investors have asked a Pennsylvania federal court to certify their class in a suit over the $6.7 billion merger between EQT Corp. and Rice Energy, which they say lost them millions as a result of misrepresentations.

Investors including lead plaintiffs Government of Guam Retirement Fund and Northeast Carpenters Pension Fund, asked Friday that the court certify a class of “many thousands” of EQT and Rice shareholders who they say lost millions because the company and its executives allegedly misrepresented the viability and successes of the merger, which was supposed to save the company billions through synergies that ended up not panning out.

The proposed class wants Bernstein Litowitz Berger & Grossmann LLP and Cohen Milstein Sellers & Toll PLLC appointed class counsel.

. . .

In the suit, the natural gas producer’s investors claim that EQT misled them about anticipated operating efficiencies and cost reductions that ultimately failed to materialize after its $6.7 billion merger in 2017. In particular, the shareholders alleged that EQT said it would be able to achieve savings by drastically increasing its drilling locations even though the company knew there was insufficient undrilled space to do so.

The suit was filed by the shareholders in June 2019, alleging that EQT had promised that the merger would bring $2.5 billion in synergies and save the company $100 million in 2018. They said those statements were made to them via investor calls, press releases and regulatory filings. The company had said that combining oil and gas leases with Rice Energy would create large, contiguous areas for drilling longer horizontal gas wells in the Marcellus Shale, according to the suit.

After the merger, however, the investors said that the leases weren’t as close together as promised and said the company’s costs went up after the merger. Overall, the cost of drilling in the third quarter of 2018 increased $300 million, the investors said. In addition, a 13% stock drop “eras[ed] nearly $700 million in shareholder value in a single day,” the investors said.

Particularly notable was an October 2018 earnings report cited in the suit, which led to a proxy fight between EQT and Rice Energy’s founders, who challenged the company’s post-merger strategy. The Rice founders won the battle in July 2019, when shareholders voted to give control of the company to brothers Toby and Derek Rice.

After the suit was filed, the defendants moved to kill the suit in January 2020, arguing that investors behind the suit are attempting to “convert their disappointment” with the company’s post-merger performance into securities fraud. The company said that it was indeed possible for it to drill as many new wells as it had promised, and that its statements were thus not misleading.

But U.S. District Judge Robert J. Colville said in December that the amount of acreage possessed by EQT and Rice and the amount of available, undrilled acreage that could be used were “knowable, quantifiable facts at the time defendants and their representations” and kept the case alive.

The investors are represented by M. Janet Burkardt and Jocelyn P. Kramer of Weiss Burkardt Kramer LLC, Salvatore J. Graziano, Adam H. Wierzbowski, Jai K. Chandrasekhar and Jesse L. Jensen of Bernstein Litowitz Berger & Grossmann LLP and Steven J. Toll, S. Douglas Bunch, Susan G. Taylor, Megan K. Kistler, Christina D. Saler, Benjamin F. Jackson and Jessica Kim of Cohen Milstein Sellers & Toll PLLC.

A recently enacted U.S. Equal Employment Opportunity Commission rule aiming to resolve more workplace bias claims outside of court has made big changes to the long-standing way the agency handles conciliation.

The rule, which was greenlit by the agency’s three Republican commissioners in a party-line vote in January and went into effect a month later, sets baseline requirements for information the EEOC has to share with employers that choose to go into conciliation.

Conciliation is an informal and confidential process in which the EEOC tries to secure voluntary compliance from employers credibly accused of workplace discrimination before suing them. The agency is required under federal law to try to conciliate cases against employers before it takes them to court.

For management-side attorneys, the recent update represents a welcome change.

. . .

Democrats in Congress have moved to roll the changes back, so what the future holds for the regulations is anybody’s guess. But for now, here are four changes employers should know about.

EEOC Must Identify Any Class

While experts disagree on whether this is a beneficial change or a setback for the agency, the rule would require the EEOC to pony up specific details on any potential class allegations and expectations for the ultimate size of the class at the conciliation stage.

Under the conciliation update, the commission must identify the aggrieved individuals or known groups of aggrieved individuals, disclose the potential class size and, if they think it’s going to get bigger, give an estimate of the additional class members that will join in later.

Businesses previously weren’t entitled to this kind of assessment until litigation.

University of South Carolina School of Law professor Joseph Seiner, who served more than five years with the EEOC as an appellate attorney under President George W. Bush, said this change stands out to him, because these are going to be the biggest lawsuits.

“Those are the types of claims that are going to be particularly expensive, and you’re not going to know going in the potential liability in a case like that,” Seiner said. “This will give a little more clarity by having to provide the basic parameters of what the pool is going to look like of those applicants.”

. . .

Christine Webber, a worker-side partner in the Civil Rights & Employment practice group at Cohen Milstein Sellers & Toll PLLC, argued that this could offer employers a weapon in litigation down the line, depending on how helpful they were in the process early on.

In situations where the agency wasn’t able to get an accused employer to hand over enough information about the extent of the problem, that business could potentially use this to shear down the class size once they get to court, she said.

“If an employer doesn’t do a completely thorough bit of research in turning over records to the EEOC in the outset, then at the end of the process, they could use their own less-than-thorough recordkeeping as a way to preclude the EEOC from providing relief to additional individuals,” she said.

“If the employer fails to turn over the information to begin with, the employer should not then be able to benefit and say, ‘see now, you didn’t disclose these people so I’m going to limit the class size,'” she added.

NEW ORLEANS – Patients at the Louisiana State Penitentiary at Angola (“Angola”) needlessly suffer from serious injuries—including severe pain, preventable sickness, and untimely death—as a result of prison officials’ failure to provide constitutionally adequate medical care. They also failed to accommodate disabilities, a federal judge ruled today.

Civil rights lawyers filed the class action lawsuit, Lewis v. Cain, on behalf of the more than 6,000 people imprisoned at Angola in May of 2015. The ruling comes after several weeks of testimony in October 2018 before Federal District Court Judge Shelly K. Dick, months of lengthy post-trial briefing on behalf of both Plaintiffs and Defendants regarding the conditions in the 18,000-acre maximum-security prison, and a brief visit to the prison on February 5, 2020.

“This ruling today affirms what we have been saying for years, the men incarcerated at Angola have been subjected to completely inadequate medical care and discrimination based on their disabilities,” said Mercedes Montagnes, Executive Director of the Promise of Justice Initiative and co-lead counsel for Plaintiffs. “Going forward, prison officials will have to start fulfilling their constitutional obligation to provide adequate medical care and disability accommodations to everyone incarcerated there, no matter how young or old, healthy or sick.”

Judge Dick found the prison’s delivery of medical care to be constitutionally inadequate in numerous ways, focusing particularly on clinical care, specialty care, infirmary care, and emergency care. In her ruling, she noted that “overwhelming deficiencies in the medical leadership and administration of health care at LSP contributes to these constitutional violations.”

The Court also found that “Defendants have been aware of these deficiencies in the delivery of medical care at LSP for decades.”

Attorneys for Plaintiffs, The Promise of Justice Initiative, the law firm Cohen Milstein Sellers & Toll PLLC, Disability Rights LA, the ACLU of Louisiana, the Southern Poverty Law Center (“SPLC”), and attorney Jeffrey Dubner, fought hard for many years to achieve this victory. The decision in their favor is even more significant as Louisiana has the highest rate of prison deaths in the country.

“Today’s decision is an enormous win for everyone,” said Jeffrey Dubner, co-lead counsel for the Plaintiffs. “Providing people who are incarcerated with adequate health care not only affirms our basic dignity as human beings, but it reduces future costs to taxpayers and facilitates successful reentry into society.”

This victory is also particularly important considering Louisiana’s changing prison population.

“Louisiana has the highest percentage of its prison population serving life without the possibility of parole sentences in the United States,” said Nishi Kumar, Director of Civil Litigation at Promise of Justice of Initiative. “For years the average age of people in the prison has risen but the state has not appropriately changed its medical care to meet the consequences of its incarceration policies. Louisiana must start paying to meet the constitutional standard for medical care and disability access, or start looking for mechanisms to release older prisoners who pose no risk to the public.”

The judge also found that the prison was in violation of the Americans with Disabilities Act and the Rehabilitation Act, on behalf of a subclass of inmates with disabilities who are physically unable to access parts of the prison.

“What we have seen firsthand is that the abysmal conditions at Angola are especially harmful to our clients who have disabilities or mobility issues,” said Bruce Hamilton, a senior staff attorney at the ACLU of Louisiana. “They are systematically denied access to even the most basic accommodations and are prevented from accessing prison services and programming as a result of their disabilities. Now the Department of Corrections will have to make whatever changes are necessary to bring the prison into compliance with federal law.”

“Everything we found when we began investigating this case more than six years ago was occurring against the backdrop of Angola’s brutal history of slavery and convict leasing,” said Montagnes. “People were being forced out into the fields and into factories to work and were not being treated for their injuries and heat stroke. Men risk their lives at the prison rodeo every year, which generates millions of dollars in profits for the prison, and were not being treated for their broken bones. People were dying prematurely from treatable cancers. Now, we can tell our clients who have bravely been with us on this case since the beginning that things are finally going to change.”

PRESS CONTACT:

Mercedes Montagnes

The Promise of Justice Initiative

504-529-5955

The Promise of Justice Initiative works to create positive change for people in the criminal legal system at the intersection of impact litigation, direct services and community

A Virginia federal court has certified a class of investors alleging that doormaker Jeld-Wen Inc. manipulated its stock price by concealing that it had violated antitrust law through an anti-competitive merger and other conduct.

U.S. District Judge John A. Gibney Jr. issued an order Monday certifying a class of Jeld-Wen investors and appointing Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP to serve as class counsel, with Cohen Milstein Sellers & Toll PLLC serving as liaison counsel.

The judge said in an opinion for the order that among Jeld-Wen’s arguments against certification was that an October 2018 announcement contained no new information for the market, even though it disclosed an expected $76.5 million in liability from a lawsuit being brought by a rival doormaker, Steves and Sons Inc.

. . .

Investors filed suit in February 2020, alleging they purchased Jeld-Wen stock at inflated prices as a result of the company concealing its involvement in an illegal antitrust conspiracy aimed at eliminating competition for interior molded doors and doorskins, which are used to make the doors.

The conduct at issue allegedly started with Jeld-Wen’s purchase of rival doorskin maker CraftMaster Manufacturing Inc. in 2012 and its convincing of enforcers at the U.S. Department of Justice that the deal should not be blocked. Steves eventually sued Jeld-Wen alleging the deal violated antitrust law, winning a landmark order in 2018 forcing Jeld-Wen to sell a Pennsylvania factory acquired with the CraftMaster purchase.

The Fourth Circuit upheld that decision in February, in what is seen as a major boon to private antitrust enforcement.

After the purchase, Jeld-Wen also allegedly started working with another rival, Masonite Corp., to raise the price of doorskins and interior doors. Similar claims have also led to price-fixing allegations against the companies in Virginia federal court.

The investors contend that Jeld-Wen insisted throughout the class period that it was operating in a competitive business environment and attributed its success to favorable pricing and strategy, when it was actually engaged in an illegal scheme to reduce competition. The case survived a dismissal bid from Jeld-Wen in October.

A Seventh Circuit judge on Tuesday pushed a St. Louis manufacturing company to explain how workers alleging retirement plan mismanagement can use individual arbitration to seek relief including the removal of directors, which would inevitably benefit other participants, when the plan’s arbitration provision says any relief can only benefit the claimant.

In oral arguments Tuesday, Triad Manufacturing Co.’s board of directors urged the appellate court to let it push into individual arbitration an Employee Retirement Income Security Act class action alleging retirement plan mismanagement, led by named plaintiff James Smith.
. . .

But U.S. Circuit Judge Michael Scudder said that removal remedy appears to conflict with language in the provision that states an individual claimant can only seek relief that “does not include or result in the provision of additional benefits or monetary relief to any [participant] other than the claimant.”

“How do you square that with the language of the plan document? He can only receive remedial or equitable relief that does not benefit another plan participant. So how can that relief be entered?” Judge Scudder asked.

The judge said that, had he been another plan participant in a hypothetical scenario in which Smith won that relief in individual arbitration, “I would be mighty thankful that [Smith] brought the lawsuit. It would definitely benefit me.”

. . .

Peter K. Stris of Stris & Maher LLP, arguing for the employees, said Judge Scudder’s reading of the provision was the right one. The U.S. Supreme Court has deemed arbitration agreements invalid and unenforceable if they operate as a prospective waiver of a party’s right to pursue statutory remedies, and this arbitration clause is a “textbook” example of that, he said.

“There’s no way to read it other than to say that it prohibits fiduciary removal,” Stris said. “My friend on the other side now wants to say the provision doesn’t bar fiduciary removal because that’s obviously a prospective waiver, and there’s a nonseverability waiver in the clause. But that’s the provision that’s written. That is a prospective waiver, and before I even get to loss restoration and disgorgement, that means the entire provision is unenforceable.”

A proposed class of current and former Triad workers led by Smith accuse the company’s board of directors and three board members of selling Triad stock to the company’s ESOP at an inflated price, giving board members “a hefty profit at their employees’ expense.”

The board defendants sought to force Smith to arbitrate the dispute, citing a provision in the ESOP’s governing documents that sent all proposed ERISA class actions to individual arbitration.

Smith fought back, saying the provision was invalid and inapplicable to him, because he was no longer employed by Triad when the arbitration clause was added. And the proposed class contends the mandatory arbitration clause is null and void because it attempts to restrict workers’ ERISA-protected right to sue collectively.

An Illinois federal judge agreed with Smith, denying the board defendants’ motion to compel arbitration. The company appealed the denial in October.

Benefits attorneys are keeping a close eye on this case due to its interrogation of whether individual arbitration clauses in employee benefit plans violate ERISA, a hot-button issue that has also been taken up by the Ninth Circuit. In an unpublished memorandum issued in 2019, that court upheld the legality of such clauses.

U.S. Circuit Judges Michael Kanne, Michael Scudder and Michael Brennan sat on the panel for the Seventh Circuit on Tuesday.

The proposed class is represented by Karen L. Handorf, Michelle C. Yau and Jamie L. Bowers of Cohen Milstein Sellers & Toll PLLC and Peter K. Stris, Rachana A. Pathak, Douglas D. Geyser and John Stokes of Stris & Maher LLP.

WHAT TO KNOW:

• Arbitration of ERISA plan mismanagement claims at issue.
• Judges focus questions on attorney arguing for arbitration.

An attorney defending a mandatory arbitration clause in an ERISA plan document on Tuesday fielded tough questions from a panel of Seventh Circuit judges, which wanted to square statutory language authorizing plan-wide relief with a plan term requiring individual arbitration of claims alleging fiduciary mismanagement.

The judges’ questions highlighted tensions between the Employee Retirement Income Security Act—which authorizes retirement plan participants to file lawsuits seeking relief that benefits the entire plan—and a provision in the Triad Manufacturing Inc. employee stock ownership plan requiring these disputes to be resolved through binding arbitration.

The case asks the judges to consider a 2020 ruling allowing a dispute over Triad’s employee stock ownership plan to proceed in court, despite the defendants’ attempt to enforce a mandatory arbitration clause added to the plan in 2018. The Triad defendants appealed, arguing that federal law favors arbitration and that an ERISA plan’s arbitration requirement constitutes consent to arbitrate on behalf of the plan’s participants. They received support from the American Benefits Council, while the AARP and public interest advocacy group Public Justice PC filed briefs criticizing these clauses.

. . .

Law in Flux

Arbitration is an alternative to litigation that employers sometimes prefer because of its confidentiality and ability to control costs. Arbitration agreements typically include class action waivers, which bar employees from participating in class actions against their employers.

Amid a big spike in class suits challenging 401(k) plan fees, several employers have pointed to arbitration clauses in employment agreements or plan documents in an effort to cut off class litigation challenging their retirement plans under ERISA. Federal courts haven’t reached a consensus on whether this is permissible.

In 2019, the Ninth Circuit allowed Charles Schwab Corp. to force arbitration in a proposed class action challenging its 401(k) plan fees based on an arbitration provision and class action waiver added to the plan in 2014. But earlier this month, the Second Circuit declined to interpret an arbitration agreement in DST Systems Inc.’s employee handbook as blocking a DST employee from bringing a class suit challenging his 401(k) plan’s investment options.

A move toward greater use and acceptance of arbitration clauses as a method for cutting off class litigation over retirement plan management could be bad news for workers’ retirement security.

The proposed class is represented Cohen Milstein Sellers & Toll PLLC and Stris & Maher LLP.

Law360’s 2021 Titans of the Plaintiffs’ Bar includes 11 lawyers, spans the U.S. and includes many heavyweights in the fields of antitrust, securities and class action law. It includes firm executives, teachers and advocates, as well as champions of diverse legal theories holding corporations accountable and protecting the rights of consumers.

. . .

Cohen Milstein Sellers & Toll PLLC attorney Julie Goldsmith Reiser helped secure multiple landmark settlements stemming from allegations of sexual abuse and harassment inside corporations. In one, she served as a co-lead counsel in a derivative suit accusing Alphabet Inc., the parent company of Google, of misleading investors by covering up sexual harassment and abuse from executives.

The suit ended with a settlement in which Alphabet agreed to spend $310 million on diversity and inclusion initiatives and to eliminate forced arbitration for harassment, discrimination and retaliation-related employment disputes.

. . .

Congratulations to Julie Goldsmith Reiser and the other accomplished lawyers who earned a spot on Law360’s 2021 Titans of the Plaintiffs Bar list.

See the complete list of those named 2021 Titans of the Plaintiffs Bar.

See also Ms. Reiser’s Titans of the Plaintiffs Bar profile.

WHAT TO KNOW:

• Speculation over investor knowledge not enough to decertify.
• Reasonable jury could find materiality, required mental state.

Tivity Health Inc. investors can continue pursuing as a class their suit over a former customer’s transformation into a competitor after a federal judge in Tennessee rejected the company’s bids for decertification and an early win.

The health services company’s investors accused it of not telling them that one of its biggest clients, UnitedHealthcare, planned to offer new services that would directly compete with Tivity’s flagship program. The company hasn’t shown that investors already knew about the added competition, and there are still genuine disputes of material fact, the U.S. District Court for Middle District of Tennessee said.

. . .

The company provided additional evidence for its argument that investors knew or should have known even before UHC publicly announced its new program, Chief Judge Waverly D. Crenshaw Jr.’s opinion said. But much of that evidence “calls for speculation,” and isn’t enough to get the class decertified.

Tivity also argued that the case didn’t need to go to trial because there was no way the investors could prove the challenged statements were material and made with the required state of mind.

Alleged omissions about UHC’s new program “may not have been material based on Tivity’s numbers,” Crenshaw said. But the court can’t “say, as a matter of law, that Tivity’s failure to disclose UHC’s intended competition was immaterial,” because “other factors” suggest reasonable investors might have seen those details as “significantly altering” the total mix of available information.

“A mosaic of facts and inferences paint a picture of Tivity fully expecting that UHC’s announcements would dramatically affect the price of Tivity shares,” the opinion said. It’s “easy” to conclude that a reasonable jury could find the “omission material at trial.”

A reasonable jury could also determine that the company “knowingly withheld” the information about the competition threat “with a culpable state of mind,” Crenshaw said Tuesday.

Cohen Milstein Sellers & Toll PLLC represented the investors as lead counsel.

Wednesday marks Equal Pay Day — the day on which women’s average 2020 pay catches up with what men made last year. With a worker-friendly administration in the White House and many states taking matters into their own hands, here’s an overview of what employers should expect on the pay equity front in 2021.

One measure to watch is the newly reintroduced Paycheck Fairness Act — a version of which, according to one of its sponsors, was first floated in Congress in 1997. The PFA would amend the Equal Pay Act of 1963 in part by narrowing employers’ defenses to existing pay gaps. It would also institute bans on asking for an employee’s salary history and on punishing workers who discuss pay.

. . .

The Paycheck Fairness Act

Many experts have in their sights the provision in the Paycheck Fairness Act that would narrow the “other than sex” employer defense in the Equal Pay Act by requiring employers to give a concrete reason why a female employee was paid less than a man in a similar position, for example, “education, training or experience.”

At a congressional hearing on the Paycheck Fairness Act and other civil rights bills last week, Fatima Goss Graves, CEO and president of the National Women’s Law Center, called the current defense a loophole.

“The ‘factor other than sex’ continues to be such a large loophole it swallows the whole requirement that you pay people equal wages for doing equal jobs,” she said.

Currently under the Equal Pay Act, employers can often use the “other than sex” defense to cite a woman’s previous salary as the reason for a pay discrepancy at their organization, said Christine Webber, a worker-side partner in the civil rights and employment practice group at Cohen Milstein Sellers & Toll PLLC. Advocates like Goss Graves say that can perpetuate a wage gap throughout a woman’s entire career.

Webber said it’s important that employers be prohibited from taking someone’s previous salary into consideration at all. But in some states that have barred employers from asking for salary history, employees can still volunteer the information and their employers can use it, she said.

. . .

The Paycheck Fairness Act also would allow employees to pursue class actions instead of collective actions, Gagnon added — in other words, workers could be automatically included in a lawsuit class unless they opted out, rather than be required to affirmatively opt in.

Webber meanwhile said some would-be plaintiffs fear retaliation from their employers if they opt into a pay bias suit, and that defense attorneys might be over-exaggerating the danger of class actions.

“It is not easy to get a class certified,” Webber said. She pointed to the famous Dukes v. Walmart pay bias case, which she worked on “from pretty much the beginning.”

In that case, the U.S. Supreme Court ruled 5-4 that the plaintiffs, female employees alleging they were paid less than their male counterparts and had fewer opportunities for promotions, hadn’t met the standards for class certification.

“I think employers tend to go sort of Chicken Little and assume that every equal pay claim is going to, you know, slap on a Rule 23 class action claim to go with it, and then their sky will be falling,” Webber said. “And I think that’s unlikely.”

A version of the Paycheck Fairness Act passed the House in 2019, 242-187. It’s likely to pass the House again, experts predicted, and has the support of President Joe Biden.

Cohen Milstein’s Webber said she thought that if the bill got to a vote in the Senate, it would pass, but noted that’s an open question given the existence of the filibuster.

. . .

The Racial Pay Gap

Wednesday’s Equal Pay Day date is a general marker, denoting the day when the pay of all U.S. women averaged together catches up with the pay of all men averaged together. For women of color, the disparity is even more stark: Equal Pay Day for Latina women, who earn just 55 cents for every dollar a white man earns, is not until Oct. 21, according to nonprofit group Equal Rights Advocates.

Worker-side attorney Webber said that while she thinks the Paycheck Fairness Act is “a great improvement that should be adopted,” if she could, she would amend it to include protections for race, noting that California recently did so.

Changes to the Golden State’s Equal Pay Act effective in 2017 barred employers from paying someone less than a co-worker who does “substantially similar work” because of gender, race or ethnicity.

. . .

The EEOC briefly collected race- and gender-based pay data from employers, but the utility of that information is currently the subject of a study from the National Academies of Sciences, Engineering and Medicine.

Webber called for making claims more attainable to plaintiffs, as well as race-based protections.

“It just is another tool in the toolbox,” she said of race protections. Women of color can mention white male “comparators” — workers in similar positions who were paid more — and an employer would not be able to say that the gap was because of race or gender, Webber noted.

But under the current system, a Black man couldn’t make the same claim under the Equal Pay Act, Webber explained — he would have to rely on another civil rights law such as Title VII of the Civil Rights Act of 1964 or Section 1981 of the Civil Rights Act of 1866, which require different burdens of proof.

An Illinois federal judge on Monday granted preliminary approval to a $104 million settlement with four poultry producers to resolve claims from a group of consumers who say the companies engaged in a long-term scheme to fix prices for broiler chickens.

U.S. District Judge Thomas Durkin said during a hearing Monday that the deal — which was reached with only some of the chicken producers roped into the case: Tyson Foods, Fieldale Farms, Peco Foods and George’s Inc. — appeared to be fair and reasonable and was reached after hard-fought negotiations, with millions of documents exchanged and more than 100 depositions taken.

. . .

The litigation began in September 2016 when private plaintiffs began claiming the nation’s largest broiler chicken producers coordinated and limited chicken production with the goal to raise prices and exchanged detailed information about prices, capacity and sales volume through data compiler Agri Stats Inc.

The end-user plaintiffs are represented by Hagens Berman Sobol Shapiro LLP and Cohen Milstein Sellers & Toll PLLC.