Aetna is expanding coverage for gender-affirming surgeries for transgender women.

The insurer will now cover gender-affirming breast augmentation in most of its commercial plans, the CVS Health subsidiary announced this week. The change came as a result of a collaboration between Aetna, the Transgender Legal Defense & Education Fund (TLDEF), Cohen Milstein Sellers & Toll law firm and several transgender Aetna members.

The update aligns coverage for breast augmentation with coverage policies for other surgical procedures for transgender patients such as breast removal or gender-reassignment surgery. Breast augmentation procedures will be covered with a referral from a doctor, documentation of the patient’s gender dysphoria and the completion of at least one year of hormone therapy, Aetna said.

After being denied coverage for breast augmentation under their plans, two transgender women contacted TLDEF and Cohen Milstein, who worked with Aetna to update the policy.

“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,” Nancy Menusan, one of the women, said in a statement. “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.”

Transgender patients experience significant hurdles to accessing care. A 2018 study found that 70% experience some kind of discrimination when seeking care, leading nearly half to avoid visits to the emergency department for acute care needs.

Aetna expanded its coverage of gender-affirming surgery for transgender women, the insurer said Jan. 26.

Under the new policy, breast augmentation for transgender women will be considered a covered service under most of Aetna’s commercial health plans.

The policy change came after transgender women raised access issues to Aetna after their breast augmentation procedures were denied as part of their gender-affirming treatment. The members were represented by Transgender Legal Defense & Education Fund and civil rights law firm Cohen Milstein Sellers & Toll, who worked with Aetna to update its clinical policy bulletin to consider breast augmentation for transgender women as a medically necessary procedure.

An Illinois federal judge handed a riverboat casino’s former employees a victory in their fight to keep a proposed ERISA class action in court, ruling Monday that the arbitration provision in Casino Queen’s employee stock ownership plan is invalid.

If Casino Queen’s board of directors wanted the arbitration provision they added to the company’s ESOP in 2018 to be valid, they needed to offer some sort of benefit or compromise to the workers being bound by that clause, U.S. District Judge David W. Dugan wrote in his opinion denying the board’s motion to compel arbitration.

Because they didn’t offer such consideration — instead, imposing a clause that solely benefited Casino Queen while harming workers — the provision is invalid, Judge Dugan wrote. In his opinion, the judge cautioned benefit plan sponsors against drafting arbitration clauses without taking workers’ interests into account in this manner.

. . .

Judge Dugan’s decision allows former Casino Queen employees Tom Hensiek and Jason Gill to litigate their proposed ERISA class action, which was filed in April against the board of directors of the casino’s parent company, CQ Holding Co. Inc.

The suit claims that Hensiek, Gill and other Casino Queen employees were cheated out of “tens of millions of dollars” after the ESOP severely overpaid for CQ Holding stock in a $170 million transaction in 2012.

Hensiek and Gill are represented by Mary Bortscheller, Michelle Yau and Sarah Holz of Cohen Milstein Sellers & Toll PLLC.

The AARP and its charitable arm threw their support behind a former Triad Manufacturing Inc. worker’s bid to keep his proposed ERISA class action in the courthouse, telling the Seventh Circuit that the arbitration clause in Triad’s employee retirement plan was illegal.

In an amicus brief filed Thursday in a case accusing Triad of mismanaging its plan, AARP said the arbitration clause flouted the Employee Retirement Income Security Act because it tried to force workers to resolve class claims through individual arbitration, ignoring ERISA’s protection of workers’ right to sue collectively.

AARP and the AARP Foundation told the Seventh Circuit they filed the brief because they believe defending workers’ right to file ERISA class actions is an important part of keeping America’s retirement system strong.

“Congress enacted ERISA to ensure that employees would receive the retirement benefits they were promised. To this end, Congress carefully crafted ERISA’s civil enforcement provisions … to enable participants to protect the financial integrity of their plans and, thus, their benefits,” AARP and its charitable arm said. Allowing companies to push class actions into individual arbitration would “greatly diminish [ERISA’s] remedial goals and effectiveness,” AARP said.

. . .

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.

In the case before the Seventh Circuit, a proposed class of current and former Triad workers led by James Smith accuse the company’s board of directors and three board members of selling Triad stock to the company’s employee stock ownership plan, or ESOP, at an inflated price, giving board members “a hefty profit at their employees’ expense.”

The board 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.

An Illinois federal judge agreed with both of Smith’s arguments, denying the board’s motion to compel arbitration. The company appealed the denial to the Seventh Circuit in October. Smith has urged the circuit court to uphold the lower court’s decision.

. . .

Smith and the proposed class are 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.

Two consumer groups suing Tyson Foods in long-running multidistrict litigation over alleged price-fixing in the broiler chicken industry told an Illinois federal judge Tuesday they have reached settlements with the poultry giant.

The motions for preliminary approval of a settlement from end-user consumers and more than 30 commercial and institutional indirect purchaser consumers comes after Tyson reached a preliminary settlement with a proposed class of direct buyers earlier this month. Details of the proposed settlement were not included in the motion.

. . .

Private plaintiffs began suing the nation’s largest broiler chicken producers, including Pilgrim’s Pride, Tyson and Perdue, over allegations of anti-competitive conduct in September 2016. The suits accuse the companies of coordinating and limiting production with the aim of raising prices, as well as exchanging detailed information about prices, capacity and sales volume through data compiler Agri Stats Inc.

The multidistrict litigation includes claims from direct purchasers, commercial indirect purchasers and end-user consumers. It has consisted of a number of smaller settlements in addition to the deals with Pilgrim’s Pride and Tyson.

The commercial and indirect purchaser plaintiffs include various businesses including a Missouri sushi restaurant, a deli in Minneapolis and the Alliance Healthcare System in Mississippi, which operates two outpatient clinics and an acute care hospital.

The U.S. Department of Justice revealed its investigation into the industry in 2019 when it obtained a discovery stay from the court overseeing the private litigation.

In June, the agency announced the indictment of four poultry executives, including the sitting president and CEO of Pilgrim’s Pride and the president of Claxton Poultry, over allegations they participated in a scheme to rig bids and fix prices for broiler chickens. Tyson then disclosed its cooperation with enforcers and said it is applying for leniency.

The DOJ announced the indictment of six more individuals in October, followed by a plea agreement with Pilgrim’s Pride specifying it must pay a penalty of more than $110.5 million and cooperate with the investigation.

The end-user plaintiffs are represented by Kit A. Pierson, Brent W. Johnson, Benjamin D. Brown, Daniel H. Silverman and Alison Deich of Cohen Milstein Sellers & Toll PLLC.

HomeServices of America can’t head off discovery with “a premature and fruitless” argument that some of the home sellers suing it and other real estate brokerages over National Association of Realtors commission rules belong in arbitration, the sellers told an Illinois federal judge Tuesday.

HomeServices of America Inc., a holding company whose affiliates include BHH Affiliates LLC, HSF Affiliates LLC and the Long & Foster Cos. Inc., can’t excise “thousands” of potential class members from the antitrust suit based on arbitration agreements included in their house listing agreements, said the home sellers, who contend they were duped into paying too high of a commission when they sold their houses.

What HomeServices really wants is to avoid its discovery obligations, according to the sellers, and any attack on the class definition belongs at the class certification stage to come, not here.

“HSA nonetheless makes the puzzling argument that plaintiffs are constitutionally barred from objecting to its position that some class members’ claims are subject to arbitration — regardless of how frivolous that position may be. This argument is not supported by Seventh Circuit authority,” they said. “For good reason — how could it be that, merely by invoking the word ‘arbitration,’ HSA is entitled to deprive absent class members of their right to representation in this action without affording the named plaintiffs an opportunity to dispute HSA’s arguments?”

HSA argued in December that the class definition should be downsized to limit discovery “to an appropriate scope.” According to the company, the named plaintiffs cannot try to represent class members who signed arbitration agreements, and they cannot challenge arbitration, because the named plaintiffs signed no such agreements.

The plaintiffs countered Tuesday that even if “some limited number of class members” are eventually forced into arbitration against HSA, the class composition and the company’s discovery obligations would remain unchanged.

“The antitrust laws make co-conspirators jointly and severally liable. As a result, class members who purchased services from HSA affiliates may pursue in litigation claims against the remaining defendants,” they said. “And the substantial majority of class members who purchased services from defendants aside from HSA may pursue in litigation claims against HSA even with respect to those affiliates that had arbitration agreements with their customers.”

. . .

The National Association of Realtors and the brokerage defendants were already dealt a major blow in early October when U.S. District Judge Andrea R. Wood refused to toss the suit. Against arguments that the sellers hadn’t been able to show injury, Judge Wood said it was enough that the plaintiffs asserted that they had to pay more for the broker commissions than they would otherwise.

When homeowners want to sell their house, they contact a seller’s broker and list their home on what is known as a multiple listing service, or MLS. To list their home on the MLS, which makes the listing available to other agents but not home buyers, sellers are required to “make a blanket unilateral offer of compensation to any broker who finds a buyer for the home,” including brokers who represent the buyer, according to the ruling.

The seller is the one who pays both sets of brokers, not the home buyer, and NAR rules prohibit sellers from negotiating the buyer-broker commission rate once that buyer-broker’s client has seen the home.

This makes negotiating the commission that a buyer’s broker gets “a practical impossibility,” according to Judge Wood.

The proposed class members claim that the NAR rules keep them locked into a single rate no matter what quality of service they receive and illegally inhibit competition. According to the plaintiffs, total commissions for U.S. residential real estate sales have remained between 5% and 5.4%, with 2.5% to 3% commissions going to buyer-brokers. Those rates are sufficiently higher than in comparable international markets to warrant the antitrust claims, the plaintiffs said.

. . .

The proposed class is represented by Cohen Milstein Sellers & Toll PLLC, Susman Godfrey LLP and Hagens Berman Sobol Shapiro LLP.

On Dec. 14, Judge Nancy Firestone of the U.S. Court of Federal Claims ruled decisively that the U.S. government violated the Fifth Amendment rights of three landowners whose properties in the Missouri River basin became vulnerable to floods after the U.S. Army Corps of Engineers revised its management of the river to comply with environmental laws. The ruling by Judge Firestone, who has been overseeing takings claims by about 400 property owners along the river since 2014, will total more than $10 million for the three bellwether plaintiffs.

But for the lawyers representing the Missouri River plaintiffs – Dan Boulware of Polsinelli and Benjamin Brown of Cohen Milstein Sellers & Toll – Judge Firestone’s decision was a challenge as well as a win. The plaintiffs’ lawyers told me Monday that they had heard from dozens of additional landowners after launching the Fifth Amendment mass action with about 400 plaintiffs in 2014, but had held off on filing new claims until Judge Firestone clarified the scope of the case. The judge’s Dec. 14 ruling effectively set a claims deadline of Dec. 31. So Boulware and Brown had to figure out how to protect the interests of other Missouri River property owners – not just the dozens who had already contacted them but hundreds of others who might have valuable claims based on Judge Firestone’s decision.

Their solution? An unusual – but not unprecedented – Fifth Amendment class action in the Court of Federal Claims. The Dec. 30 complaint lists more than 60 named plaintiffs who own allegedly flood-prone land along the river in Kansas, Nebraska, Iowa and Missouri. If the class is certified, Boulware said, hundreds of other class members will also have an opportunity to assert claims. (Property owners who have already brought individual suits in the mass action, known as the Ideker case, are excluded from the class.)

Cement and cementitious materials producers are helping concrete customers improve carbon dioxide emissions reduction track records and or embodied carbon metrics. Additional improvements are in the offing for structural concrete as reinforcing steel top guns log CO2 cuts on trend lines sharper than their portland cement counterparts. Since the percentage of rebar in a column cross section can approach that of concrete mix design binders, project stakeholders will see measurable embodied carbon performance among sources of two indispensable materials.

This month we have the overall leader in concrete reinforcing steel production, fabrication and distribution, North Carolina-based Nucor Corp., enter a major renewable energy contract for its Texas operations. Solar power factors into a parallel legal development involving Commercial Metals Co. (CMC), Irving, Texas—second in raw rebar milling to Nucor but a bigger player in fabrication.

San Diego-based rebar fabricator and installer Pacific Steel Group (PSG) seeks damages and injunctive relief in a complaint alleging federal antitrust and California business practices law violations by CMC, Irving, Texas, and its principal plant builder, Danieli Corp., Cranberry Township, Pa. PSG counsel Cohen Milstein Sellers & Toll outlines a case by examining the emergence of a) vertical integration in rebar production, fabrication, distribution and installation; and, b) micro mill technology from Danieli, which has built low-cost production lines for CMC in Arizona and Oklahoma. Attorneys allege that CMC:

• In tandem with peer producer and fabricator Gerdau Reinforcing Steel, responded to PSG’s 2014 launch by bidding on construction projects below cost to try to starve the upstart of revenues and drive it from the California market;
• Priced its fabrication and installation services for the purpose of injuring PSG and destroying competition in violation of California statutes;
• Conspired to prevent PSG from building its own Danieli micro mill;
• Enlisted Danieli for construction of a Mesa, Ariz. mill and secured an agreement under which the production line specialist would refrain for a nearly six-year period from building a similar facility within 500 miles of Rancho Cucamonga, Calif.—site of a Gerdau operation CMC acquired in late 2018 as part of a major Gerdau SA steel mill and fabrication shop transaction; and,
• Conferred with Danieli representatives on solar power options for the Mesa site after the plant builder had discussed a similar plan with PSG for a micro mill in California, where new carbon-wise procurement guidelines favor rebar operations tapping clean energy sources.

“Commercial Metals Company fears competition from Pacific Steel Group and has resorted to blatant anticompetitive measures to maintain its monopoly position and reap inflated profits. Antitrust laws insist that Pacific Steel Group be allowed to engage in competition in a free marketplace for the benefit of the many commercial construction projects in California and neighboring states that use rebar,” says Cohen Milstein Partner Daniel Small.

The CMC and Danieli tactics, adds PSG CEO Eric Benson, were clear: “To prevent PSG from entering the rebar manufacturing market and providing construction customers a high-quality, lower-cost alternative.”

Bills that allow Michigan to issue bonds to cover the state’s $600 million share of the Flint water crisis settlement have gained the approval of the state House and Senate.

The House approved the proposals Wednesday, one of the final scheduled session days of the year. They passed the Senate last week.

The Legislature plans to repay the borrowed money through an annual appropriation of $35 million over the next three decades, according to a House analysis of the bills, which were sponsored by Sen. Jim Ananich, D-Flint, and Sen. Jim Stamas, R-Midland.

The U.S. Court of Federal Claims has said the federal government owes over $7 million to a trio of landowners as compensation for the serial flooding of their private properties near the Missouri River due to a conservation initiative undertaken by the U.S. Army Corps of Engineers.

Judge Nancy B. Firestone ruled Monday that the Corps increased the severity of flooding caused by the Missouri River when it shifted its priorities in the early 2000s from flood control to environmental restoration. Consequently, the government owes three bellwether plaintiffs over $7 million in collective damages for the devaluation of their property, the court held.

The ruling means hundreds of individuals who own property affected by the flooding in six different states are likely entitled to just compensation for the decreases in their property value due to the new flood patterns created by the Corps’ execution of the Missouri River Recovery Program.

“In sum, the court finds that the increased frequency, severity, and duration of flooding post-MRRP demonstrates that the MRRP changed the character of the representative tracts of land,” the court said. “It cannot be the case that land that experiences a new and ongoing pattern of increased flooding does not undergo a change in character.”

. . .

The lawsuit was filed in 2014 by over 400 farmers, landowners and business owners ranging from North Dakota to Kansas who alleged that flooding in 2007, 2008, 2010, 2011, 2013 and 2014 constituted a “taking without just compensation” in violation of the Fifth Amendment. The litigation was divided into two phases — liability and just compensation.

The first phase of the litigation was decided in March 2018 when Judge Firestone found that some of the 44 property owners selected as bellwether plaintiffs had proven the Corps’ liability. In that decision, the court found that the Corps, in an attempt to balance its flood control and Endangered Species Act responsibilities, released water from reservoirs “during periods of high river flows with the knowledge that flooding was taking place or likely to soon occur.”

The Corps made other changes after 2004 to reengineer the river and reestablish more natural environments to facilitate species recovery. That caused effects like riverbank destabilization, which also led to flooding, the judge said in the 2018 opinion.

Judge Firestone ultimately found that 28 of the 44 landowners had cleared the three hurdles necessary to prove a takings claim: causation, foreseeability and severity. The remaining 16 failed to prove causation, and their claims were dismissed. The judge additionally found that flooding in 2011 could not be tied to the Corps’ actions and dismissed claims for that year.

Monday’s ruling, the second phase of the litigation, was responsible for determining the extent of the landowners’ losses and whether the government has a viable defense against their claims. The court additionally held that interest shall be calculated on the damages using Moody’s calculation that provides for a 1.7% rate of return, which will be compounded annually, according to the opinion.

The plaintiffs are represented by R. Dan Boulware and Edwin H. Smith of Polsinelli PC and Benjamin D. Brown of Cohen Milstein Sellers & Toll PLLC.