The NAACP filed a lawsuit Tuesday against former President Trump and far-right extremist groups in connection with the Jan. 6 Capitol riots that killed five people and injured dozens of officers.
Why it matters: The federal lawsuit filed on behalf of House Homeland Security Chairman Bennie Thompson (D-Miss.) shows that Trump continues to face legal problems stemming from the riot, even after he was acquitted in his Senate impeachment trial Saturday.
Details: The lawsuit — filed in the U.S. District Court in Washington, D.C., by the NAACP and civil rights law firm Cohen Milstein Sellers & Toll — accuses Trump, his attorney Rudy Giuliani, the Proud Boys, and the Oath Keepers of conspiring to incite a riot at the Capitol with the goal of preventing Congress from certifying the 2020 presidential election.
The lawsuit accuses the former president of conspiring with two extremist groups to block the Electoral College vote count.
Rep. Bennie Thompson, D-Miss., and the NAACP filed a lawsuit Tuesday against former President Donald Trump and Rudy Giuliani, accusing them of conspiring with two extremist groups to block the presidential vote count by storming the U.S. Capitol.
The lawsuit, the first over the Capitol riot to name Trump, said the attack was “the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College.”
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Thompson and the NAACP said Trump, Giuliani, the Proud Boys and the Oath Keepers shared a common goal “of employing intimidation, harassment, and threats” to stop the vote count. The riot was “a direct, intended, and foreseeable result” of the conspiracy, it said.
Their suit invoked the Civil Rights Act of 1871, commonly known as the Ku Klux Klan act, which allows lawsuits against government officials for claims that they conspired to violate civil rights. It was filed in U.S. District Court in Washington by a law firm specializing in such cases, Cohen Millstein Sellers & Toll.
Attorneys at Cohen Milstein and the NAACP are representing a Democratic lawmaker who sued former President Donald Trump and others on Tuesday for allegedly causing the deadly Capitol riot in January and violating the Reconstruction-era Ku Klux Klan Act.
Rep. Bennie Thompson, a Mississippi Democrat who chairs the House Homeland Security Committee, said he expects other lawmakers to join his case against Trump, the ex-president’s personal attorney Rudy Giuliani and two far-right extremist groups, the Proud Boys and the Oath Keepers. He said litigation in D.C. federal court was necessary after the Senate acquitted Trump in his second impeachment trial Saturday.
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Senate Minority Leader Mitch McConnell, R-Ky., in a floor speech after the acquittal vote called the former president “practically and morally responsible for provoking the events” of Jan 6. However, he said Trump should face accusations in the courts rather than a post-presidency impeachment trial, which most Republicans called unconstitutional.
“We have a criminal justice system in this country,” McConnell said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”
Thompson said his lawsuit aims to do just that, relying on a rarely used provision of an 1871 law meant to protect civil rights and federal officials amid harassment and attacks by the KKK Section 1985(1) of Title 42 creates civil liability for conspiracies to interfere with federal officials carrying out their duties.
“The congressman is intending to show that no one is above the law,” Cohen Milstein Sellers & Toll PLLC executive committee chair Joseph M. Sellers told Law360. “It is quite clear that these four defendants all took steps with the common purpose of interfering with the ability of Congress to ratify the election.”
The veteran civil rights attorney said that under D.C. Circuit precedent, a conspiracy does not require showing communication among the defendants but simply proving they “have taken one or more actions in the pursuit of a common plan or purpose.”
The complaint alleged a “carefully orchestrated” and “unified plan to prevent the counting of Electoral College votes.” It said combative rhetoric by Trump and Giuliani, combined with a campaign of unproven and discredited claims about massive election fraud, had a “natural, foreseeable and intended consequence.”
The lawsuit also described how Thompson listened to rioters pounding on the House chamber’s doors as he lay on the floor and heard a gunshot.
“Thompson feared for his life and worried he might never see his family again,” the complaint said, seeking to establish an injury that gives him standing to sue. He requested a jury trial, an injunction, and compensatory and punitive damages.
Sellers said he regularly deals with other provisions in Section 1985 but had never thought much about its rarely invoked first paragraph until Thompson and the NAACP sought a legal framework for their case. He said it rarely had been raised after some litigation in the late 1800s.
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That argument comes after Trump tweeted Dec. 19, “Big protest in D.C. on January 6th. Be there, will be wild!” On Jan. 6, Trump and Giuliani addressed the crowd on the Ellipse in front of the White House shortly before rioters stormed the Capitol. Democrats and some Republicans said Trump’s inflammatory rhetoric amounted to inciting an insurrection.
Thompson is represented by Janette Louard and Anthony P. Ashton of the NAACP and Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC.
FOR IMMEDIATE RELEASE:
Lawsuit Alleges Violation of the “Ku Klux Klan Act,” a Civil War-Era Statute Prohibiting Interference with Congress’ Constitutional Duties.
Filed by NAACP and Cohen Milstein Sellers & Toll, Lawsuit Also Names Proud Boys and Oath Keepers.
WASHINGTON D.C.—Mississippi Congressman Bennie Thompson filed a federal lawsuit today accusing Donald J. Trump, Rudy Giuliani, the Proud Boys and Oath Keepers of conspiring to incite a violent riot at the U.S. Capitol on January 6th, with the goal of preventing Congress from certifying the 2020 presidential election. The lawsuit alleges that, by preventing Congress from carrying out its official duties, Trump, Giuliani and the hate groups directly violated the 1871 Ku Klux Klan Act.
Following acquittal by the U.S. Senate in the second impeachment trial, Minority Leader Mitch McConnell openly encouraged litigation against Trump, saying: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”
The insurrection was the result of a carefully orchestrated plan by Trump, Giuliani and extremist groups like the Oath Keepers and Proud Boys, all of whom shared a common goal of employing intimidation, harassment and threats to stop the certification of the Electoral College. They succeeded in their plan. After witnessing Capitol police barricading the doors of the House chamber with furniture, Congressman Thompson and fellow lawmakers donned gas masks and were rushed into the Longworth House Office Building where they sheltered with more than 200 other representatives, staffers and family members.
The lawsuit was filed Tuesday morning in Federal District Court in Washington, D.C. by the NAACP and law firm Cohen Milstein Sellers & Toll. Other members of Congress, including Representatives Hank Johnson (D-GA) and Bonnie Watson Coleman (D-NJ), intend to join the litigation as plaintiffs in the coming days and weeks.
The coup attempt was a coordinated, months-long attempt to destroy democracy, to block the results of a fair and democratic election, and to disenfranchise millions of ballots that were legally cast by African-American voters. The NAACP is representing Congressman Thompson in this lawsuit because the events on January 6th were just one more attempt by Donald Trump and his allies to make sure that African-American voters were disenfranchised – this time, by trying to stop members of Congress from doing their job and certifying the election results.
“January 6th was one of the most shameful days in our country’s history, and it was instigated by the President himself. His gleeful support of violent white supremacists led to a breach of the Capitol that put my life, and that of my colleagues, in grave danger. It is by the slimmest of luck that the outcome was not deadlier. While the majority of Republicans in the Senate abdicated their responsibility to hold the President accountable, we must hold him accountable for the insurrection that he so blatantly planned. Failure to do so will only invite this type of authoritarianism for the anti-democratic forces on the far right that are so intent on destroying our country,” said Congressman Bennie Thompson (D-MS).
“Donald Trump needs to be held accountable for deliberately inciting and colluding with white supremacists to stage a coup, in his continuing efforts to disenfranchise African-American voters. The insurrection was the culmination of a carefully orchestrated, months-long plan to destroy democracy, to block the results of a fair and democratic election, and to disenfranchise hundreds of thousands of African-American voters who cast valid ballots. Since our founding, the NAACP has gone to the courthouse to put an end to actions that discriminate against African- American voters. We are now bringing this case to continue our work to protect our democracy and make sure nothing like what happened on January 6th ever happens again,” said Derrick Johnson, President and CEO, NAACP.
“The insurrection at the Capitol did not just spontaneously occur—it was the product of Donald Trump and Rudy Giuliani lies about the election. With the Senate failing to hold the President accountable, we must use the full weight of the legal system to do so. The judicial system was an essential bulwark against the President during his time in office, and its role in protecting our democracy against future extremism is more important than ever,” said Joe Sellers, Partner at Cohen Milstein, Chair of the firm’s Executive Committee and Chair of the Civil Rights & Employment Practice Group.
The lawsuit alleges that Trump and Giuliani violated 42 U.S.C. 1985(1), often referred to as the Ku Klux Klan Act, which was passed in 1871 in response to KKK violence and intimidation preventing Members of Congress in the South during Reconstruction from carrying out their constitutional duties. The statute was intended specifically to protect against conspiracies.
In the months leading up to the insurrection, Trump and Giuliani allegedly mobilized and prepared supporters for an attack. In fact, Trump acknowledged the potential for violence and bloodshed if the election results were not overturned, tweeting: “People are upset, and they have a right to be. Georgia not only supported Trump in 2016, but now. This is the only State in the Deep South that went for Biden? Have they lost their minds? This is going to escalate dramatically. This is a very dangerous moment in our history….”
As Electoral College certification grew closer, Trump encouraged his supporters to descend on Washington that day, tweeting “Big protest in DC on January 6th. Be there, will be wild!” Extremist groups responded to Trump’s and Giuliani’s rhetoric. In early January, Proud Boys leader Joseph Biggs said, “Every lawmaker who breaks their own stupid Fucking laws should be dragged out of office and hung.” Members of the Oath Keepers worked together to find a hotel that had “a good location and would allow us to hunt at night if we wanted to.”
On the day of the insurrection, Trump and Giuliani spoke to participants at the “Save America” rally, which both the Proud Boys and Oath Keepers attended. Both Trump and Giuliani allegedly made incendiary comments designed to incite the crowd and direct them to take action to thwart Congress’ ability to certify the election, including:
- “If we’re right, a lot of them will go to jail. So let’s have trial by combat …”
- “So we are going to … walk down Pennsylvania Avenue… we’re … going to try and give them the kind of pride and boldness that they need to take back our country.”
Shortly after, rioters breached the Capitol, including members of the Proud Boys and Oath Keepers. Video footage shows a member of the Proud Boys breaking through a window with a shield captured from a U.S. Capitol police officer. The militia members then began to roam the hallways, using earpieces and walkie talkies to coordinate and communicate as they enacted their plan to hunt for Members of Congress, with some even bringing plastic handcuffs in preparation for detaining captured elected officials.
Once inside, the rioters made clear they were acting at the behest of President Trump to interrupt the certification process, with one saying, “We were invited here by the President of the United States.”
Eventually, the rioters began pounding on the doors where Congressman Thompson and the House of Representatives were voting to certify the Electoral College. Behind the barricaded doors, Thompson heard the rioters trying to break into the chamber refer to Speaker Pelosi as a “bitch,” saying they wanted to get their hands on her and refer to Vice President Pence as a person who had betrayed President Trump.
Even as the insurrection was occurring, Giuliani made phone calls to Members of Congress insisting that they do everything they could to “slow down” the Electoral College vote count in Congress, again referring to unfounded claims of voter fraud. Later in the evening, President Trump tweeted, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”
The NAACP has, since its founding, represented individuals in court to eliminate race-based discrimination. Throughout the 2020 election cycle, and after the election, the NAACP utilized the judiciary to protect the rights of African-American voters and ensure that their ballots were counted. This case is a continuation of that work.
About NAACP:
Founded in 1909 in response to the ongoing violence against Black people around the country, the NAACP is the largest and most pre-eminent civil rights organization in the nation. We have over 2,200 units and branches across the nation, along with well over 2M activists. Our mission is to secure the political, educational, social, and economic equality of rights in order to eliminate race-based discrimination and ensure the health and well-being of all persons. In media attributions, please refer to us as the NAACP.
NOTE: The Legal Defense Fund, also referred to as the NAACP-LDF, was founded in 1940 as a part of the NAACP, but separated in 1957 to become a completely separate entity. It is recognized as the nation’s first civil and human rights law organization, and shares our commitment to equal rights.
About Cohen Milstein Sellers & Toll:
Cohen Milstein Sellers & Toll PLLC is recognized as one of the premier law firms in the country handling major, complex plaintiff-side litigation. With more than 100 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa. and Raleigh, N.C.
Media Contact:
Doug Cohen / 617.595.7160
doug.cohen@berlinrosen.com
The civil rights group brought the suit on behalf of Representative Bennie Thompson of Mississippi, with other Democrats in Congress expected to join as plaintiffs.
The N.A.A.C.P. on Tuesday morning filed a federal lawsuit against former President Donald J. Trump and his personal lawyer Rudolph W. Giuliani, claiming that they violated a 19th century statute when they tried to prevent the certification of the election on Jan. 6.
The civil rights organization brought the suit on behalf of Representative Bennie Thompson, Democrat of Mississippi. Other Democrats in Congress — including Representatives Hank Johnson of Georgia and Bonnie Watson Coleman of New Jersey — are expected to join as plaintiffs in the coming weeks, according to the N.A.A.C.P.
The lawsuit contends that Mr. Trump and Mr. Giuliani violated the Ku Klux Klan Act, an 1871 statute that includes protections against violent conspiracies that interfered with Congress’s constitutional duties; the suit also names the Proud Boys, the far-right nationalist group, and the Oath Keepers militia group. The legal action accuses Mr. Trump, Mr. Giuliani and the two groups of conspiring to incite a violent riot at the Capitol, with the goal of preventing Congress from certifying the election.
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In the lawsuit, Mr. Thompson said he was forced to wear a gas mask and hide on the floor of the House gallery for three hours while hearing “threats of physical violence against any member who attempted to proceed to approve the Electoral College ballot count.” Mr. Thompson also heard a gunshot, according to the suit, which he did not learn until later had killed Ashli Babbitt, one of the rioters in the Capitol lobby.
Mr. Thompson is seeking compensatory and punitive damages in the lawsuit filed in Federal District Court in Washington. The suit does not include a specific financial amount.
Mr. Thompson, 72, claims he was put at an increased health risk by later being required to shelter in place in a cramped area that did not allow for social distancing. The lawsuit notes that Mr. Thompson shared confined space with two members of Congress who tested positive for the coronavirus shortly after the attack at the Capitol.
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Both Democratic and Republican members of Congress have recently raised the prospect of Mr. Trump being held accountable in the courts for the riot. Senator Mitch McConnell, the Republican leader, voted to acquit Mr. Trump in the impeachment trial but then appeared to encourage people to take their fight to the courts.
“He didn’t get away with anything, yet,” Mr. McConnell said at the trial’s conclusion, noting: “We have a criminal justice system in this country. We have civil litigation.”
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While much of the focus of the impeachment trial rested on how the violent mob was threatening former Vice President Mike Pence as well as congressional leaders like the House speaker, Nancy Pelosi, N.A.A.C.P. officials said the attack was deeply rooted in racial injustice.
“Underlying this insurrection were the actions of folks who were challenging the voices of people of color,” said Janette McCarthy Louard, deputy general counsel of the N.A.A.C.P. “If you look at whose votes were being challenged, these came from largely urban areas. The votes of people of color were being challenged.”
The suit, for instance, charges Mr. Giuliani with attempting to reject “the votes cast by voters in Detroit, the population of which is 78 percent African-American.” It also says Mr. Giuliani inaccurately claimed there was fraud in voting in Milwaukee and Madison, Wis., “both of which have large African-American populations.”
Joseph M. Sellers, a partner at the civil rights law firm Cohen Milstein Sellers & Toll, which jointly filed the case, said the lawsuit named Mr. Trump in his personal capacity because his conduct challenging another branch of government to do its job falls outside the official duties of the president.
“He was engaging in conduct that is so far outside any remotely legitimate scope of his presidential duties,” Mr. Sellers said. “He no longer has the immunity of the president.”
Attorneys with Cohen Milstein and the NAACP allege the Jan. 6 riots were “the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College.”
Donald Trump is facing his first lawsuit for inciting the violent Jan. 6 riot at the U.S. Capitol, a move that comes days after the Senate failed to reach the votes needed to convict him of insurrection during the former president’s second impeachment trial.
The lawsuit, filed Tuesday in the U.S. District Court for the District of Columbia by a member of Congress, targets Trump and his personal attorney, Rudy Giuliani, as well as the right-wing groups the Proud Boys and the Oath Keepers, members of which were involved in the deadly siege during the congressional process to certify the Electoral College results.
Attorneys with the NAACP and the firm Cohen Milstein Sellers & Toll filed the lawsuit on behalf of Rep. Bennie Thompson, a Democrat from Mississippi and the chairman of the House Homeland Security Committee. It’s the first significant lawsuit targeting Trump in his personal capacity since leaving office, and the first piece of civil litigation stemming from the Capitol riots.
The complaint alleges that Trump, Giuliani and the extremist groups “conspired to prevent, by force, intimidation and threats” Thompson from being able to certify the Electoral College results, in violation of the Ku Klux Klan Act. Other members of Congress, including Democratic Reps. Hank Johnson and Bonnie Watson Coleman, are expected to join the lawsuit in the coming days.
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Joseph Sellers, chairman of Cohen Milstein’s Civil Rights and Employment practice, said in an interview that attorneys and Thompson began working on the lawsuit “well before” the impeachment trial began, but chose not to file until the trial was over so as not to be a distraction.
“Congressman Thompson wanted to do something that would hold accountable the principal architects of the events on Jan. 6 and others leading up to it, and he wanted to seek redress for real harm that he felt he suffered,” Sellers said. “He had very serious worries about his safety.”
The attorney said the litigation is not meant as a redo for the impeachment trial, as it’s based on different legal claims surrounding Trump and the others’ alleged efforts to block the certification of the Electoral College results.
“We certainly cite and describe the various ways in which the president was engaged in conduct that incited a riot and an insurrection. That’s not the basis for our suit,” Sellers said. “The basis of our suit is that the president and the other defendants engaged in a conspiracy with the purpose of interfering with the ability of Congress to discharge its lawful duties to ratify the results of the election.”
Trump and the Department of Justice under his administration repeatedly fought lawsuits personally targeting the then-president, and have successfully staved off or delayed the vast majority of those legal challenges. Tuesday’s lawsuit says that while Trump’s actions took place during his presidency, “Trump acted beyond the outer perimeter of his official duties and therefore is susceptible to suit in his personal capacity.”
Sellers reiterated Tuesday that he believes Trump’s actions fall outside the scope of his official presidential duties, and that the then-president’s apparent belief that he could still win the election also points to his conduct constituting campaign activities.
“We believe that the evidence here of the president’s conduct, which includes inciting a riot, is ultimately part of a plan to urge people to interfere with Congress’s ability to complete ratification of the election and is well outside the scope of any conceivable legitimate duties of a president,” Sellers said. “It’s completely at odds with the Constitution and ought to be a basis on which to exclude it from any conceivable basis for the duties of the president.”
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Sellers said while more Democrats are already seeking to join the lawsuit, Republicans who similarly want to hold Trump accountable would be welcome. In addition to the seven GOP senators who voted in favor of conviction, 10 House Republicans voted last month to impeach Trump.
The 32-page complaint details Trump and Giuliani’s conduct ahead of the riot, as well as that of the rioters, including members of the Oath Keepers and the Proud Boys, during the siege itself. Members of both groups are facing federal charges in relation to the riot, with some facing more serious charges such as conspiracy.
“In furtherance of this conspiracy, Defendants Trump and Giuliani engaged in a concerted campaign to misinform their supporters and the public, encouraging and promoting intimidation and violence in furtherance of their common plan to promote the re-election of Defendant Trump, even after the states had certified election results decisively showing he lost the election, and to disrupt the legally required process before Congress to supervise the counting of the Electoral College ballots and certify the results of that count,” the lawsuit reads.
The change puts pressure on firms’ compliance operations, experts say. Facilitating the ability of SEC staff to issue subpoenas and take testimony is expected to make enforcement more agile and effective.
A decision by the Securities and Exchange Commission to allow more of the agency’s staff to launch investigations will put more demands on financial firms’ compliance operations, experts said.
In a statement Tuesday, SEC Acting Chair Allison Herren Lee said she had restored the ability of senior enforcement officers to approve a formal order investigation and to authorize staff to subpoena documents and take testimony. She said the wider delegation of commission authority would enable SEC investigators to act more quickly to detect and stop fraud.
Lee put back in place a policy that existed under the chairmanships of Mary Schapiro and Mary Jo White during the Obama administration. The delegated authority was removed during the Trump administration. The five-person SEC has a political majority that reflects the party in power in the White House.
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The recent trading explosion in GameStop and other stocks of faltering companies has raised potential investor protection issues that the SEC says it is reviewing. The GameStop frenzy blew up quickly and demonstrates why SEC enforcement needs to be nimble, said Laura Posner, a partner at Cohen Milstein Sellers & Toll. “People trade in nanoseconds, and agencies that oversee these markets need to be able to move quickly,” said Posner, a former New Jersey Securities Bureau chief.
Pushing key enforcement decisions down from the commission to the staff level helps achieve that goal. “When everything has to be approved by someone at the top, it takes longer, it slows down the process and, quite frankly, makes it more political,” Posner said.
Although Lee is temporarily the SEC chair, her decision to empower enforcement is a harbinger of what is likely to come under Gary Gensler, who has been nominated by the Biden administration to chair the commission. “It reflects interest in going back to a more enforcement-centric commission that is focused on rectifying harm to investors as soon as possible,” Posner said.
The SEC brought 405 stand-alone enforcement actions in fiscal 2020, which was down from 526 in fiscal 2019 and the lowest since fiscal 2015, according to agency statistics. But then-SEC Chairman Jay Clayton touted the agency’s ability in fiscal 2020 to obtain a record amount of monetary remedies despite agency staff working remotely as a result of the coronavirus pandemic.
The Hawaii Longline Association says it has worked to improve the lives of foreign fishermen after reports about squalid conditions on some vessels.
The Hawaii Longline Association says it welcomes the recommendations contained in two recent reports to Congress that outline ways the seafood industry can prevent labor abuse.
The longliners, which primarily target tuna and swordfish, faced intense scrutiny after a 2016 investigation by The Associated Press found a number of foreign crewmen working the vessels were living in squalid conditions and earning as little as 70 cents an hour.
Since then, Congress has called for more oversight of the national and international seafood industry, particularly when it comes to issues of illegal fishing and human trafficking.
Eric Kingma, HLA executive director, says the local longline fleet has already taken several steps to ensure Hawaii’s fishermen are treated humanely. While he took issue with some of the findings of the AP articles, he acknowledged it sparked a needed conversation about how foreign fishermen are treated.
“That report did damage to the reputation of our fishery and we’re still dealing with that, but we have to move on,” Kingma said. “Certainly, we took the issue very seriously and responded with our own review of crew, captains and vessel owners.”
He said HLA’s internal review did not find any evidence of human trafficking or forced labor in the longline fleet, which is made up of about 140 vessels and nearly 700 foreign fishermen.
In 2018, two Indonesian fishermen settled a human trafficking lawsuit with a California-based captain and vessel owner in which they claimed they were verbally abused and denied medical treatment.
According to the lawsuit, the men said they were trafficked through the Hawaii longline fleet and worked around the islands and off the shores of California.
The lawsuit, filed in U.S. court in San Francisco, claimed the men were trafficked through the Hawaii longline fishing fleet and forced to work on the boat around Hawaii and off the shores of California.
Kingma said the association has developed a written code of conduct and crew handbook that lays out a process for filing grievances over workplace conditions and contractual disputes. Phone numbers to local community resources, including the Seafarers Ministry and medical professionals, are also provided.
All the information, Kingma said, is translated into the native languages of the fishermen, many of whom come from Indonesia, the Philippines, Vietnam and other Pacific island countries.
The Third Circuit on Wednesday declined to revisit its ruling that a payroll company must face a proposed overtime class and collective action from Pennsylvania Medicaid-funded home care workers because jurors could find that the company was a joint employer.
In an order, a Third Circuit panel denied a petition by Boston-based Public Partnerships LLC for a rehearing by the judges who took part in the previous ruling, leaving in place the decision from December to send the case back to district court.
“It is hereby ordered that the petition for rehearing by the panel is denied,” U.S. Circuit Judge Michael A. Chagares said in the order.
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In its December ruling, the appeals panel said PPL could be considered a joint employer using the test from the Third Circuit’s 2012 decision from In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation.
Under the four-factor test for determining when to hold multiple businesses liable for actions pertaining to the same worker, courts are supposed to consider the business’ ability to hire and fire workers, how much control it has over their working conditions, the amount of supervision it has over workers and whether it maintains their employment records.
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Talarico is represented by Caroline E. Bressman, Robert L. Schug and Rachhana T. Srey of Nichols Kaster, Richard A. Katz of Arnold Beyer & Katz and by Christine E. Webber of Cohen Milstein.
The payer updated its policies in response to four transgender members who came forward and demanded better access to care after their feminizing surgery claims were denied.
Aetna has updated its coverage policies to correct care disparities and to include gender-affirming surgeries for transgender women in most of its commercial plans, CVS Health announced.
Aetna worked with the Transgender Legal Defense & Education Fund (TLDEF), the law firm Cohen Milstein Sellers & Toll (Cohen Milstein), and individual transgender Aetna members in order to redesign the payer’s clinical policies around transgender surgeries.
The alterations cover transfeminine breast augmentation as a medically necessary clinical service, when certain criteria have been met.
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Aetna members motivated this policy change. A total of four transgender women came to TLDEF and Cohen Milstein when Aetna denied coverage for their breast augmentation.
TLDEF and Cohen Milstein then approached Aetna to promote changes to the policies that prevented the four Aetna members from receiving coverage for their treatments.
“My hope is that being part of this groundbreaking collaboration helps other transgender and non-binary people have access to the health care we deserve,” said Nancy Menusan, an Aetna beneficiary who pushed for this change.
“By dropping exclusions for medically-necessary care like top surgery, Aetna is paving the way and setting an example for other health insurance providers, and I hope others will take note.”
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“This marks an important moment for transgender women, who are increasingly speaking out to demand better support for their physical and mental health,” said Kalpana Kotagal, partner at Cohen Milstein.
“Aetna has a history of ensuring health care coverage for the transgender community, and we appreciate its cooperation in revising this policy to enhance medical coverage for transgender women who suffer from gender dysphoria.”