Justice Ruth Bader Ginsburg made waves by taking issue with majority rulings in cases involving fair pay for women and access to birth control, but those dissents represent just a fraction of her output during nearly three decades on the U.S. Supreme Court.

And while attorneys say there are plenty of other employment cases in which Justice Ginsburg left her mark, they acknowledge that those two dissents will be forever synonymous with her. In Ledbetter v. Goodyear, she accused the majority of ignoring the realities of the workplace and spurred Congress to pass the Lilly Ledbetter Fair Pay Act in 2009. In Burwell v. Hobby Lobby, she opposed a five-justice majority’s conclusion that the Religious Freedom Restoration Act shields closely held companies from providing contraception coverage to their employees as required by a provision of the Affordable Care Act.

Here, Law360 digs deeper into the late jurist’s employment writings.

Wal-Mart Stores Inc. v. Dukes et al.

In one of its seminal employment decisions over the past 20 years, the high court in 2010 struck down a class of about 1.5 million women in a gender bias class action against retail giant Walmart in what has been called the largest Title VII sex discrimination case in U.S. history. The 5-4 ruling in Wal-Mart Stores Inc. v. Dukes authored by Justice Antonin Scalia reverberated throughout the employment law world because it made it harder for plaintiffs to obtain class certification and bring claims as a group.

The suit saw lead plaintiff Betty Dukes and a handful of other women allege that Walmart fostered a discriminatory corporate culture, paid women less than their male colleagues and passed them over for promotions.

In a partial dissent, Justice Ginsburg wrote that the women had adequately alleged a question common to the proposed class, namely that Walmart’s discretionary policies were discriminatory. She also criticized the majority for focusing on the dissimilarities between individual class members and for improperly “blending” the threshold issue of commonality with the more demanding requirements of the class action rule at issue. The dissenters, however, rejected certification under a separate section of the class action rule, Rule 23(b)(2) of the Federal Rules of Civil Procedure.

. . .

Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, who served as counsel for Dukes and her fellow class members, told Law360 on Monday that Justice Ginsburg’s dissent “reflected two of [her] real strengths — her mastery of civil procedure and her appreciation of the modern workplace and the ways in which bias can infiltrate modern personnel decisions.”

“Justice Ginsburg’s dissent was so characteristic of her,” Sellers said, noting that it was “an erudite treatment” of Rule 23 that critiqued the majority’s legal rationale “mixed with an empirical assessment of the ways in which bias can infiltrate personnel decisions that was informed by both common sense and an awareness of the modern workplace, which I think was missing from the majority opinion.”

Sellers also recalled that the oral argument session, in which he was peppered with dozens of questions by justices often speaking over one another, calmed when Justice Ginsburg spoke, which he attributes to the respect she was afforded by her colleagues on the bench.

“I think — reflecting the respect she got from the other justices — when she spoke, they tended to pause and let her finish her question,” Sellers said. “She didn’t speak a lot, but what she asked was really very, very much on the point and very insightful.”

“Many have spoken about how she was a role-model for women. I don’t know how many of us men can say that but I found her to be an incredible role-model as well,” he added

A Massachusetts federal judge has given her initial approval of a $19.9 million settlement deal between pharmaceutical company Actavis and the direct purchaser class in a lawsuit that accused the company, along with fellow pharma company Shire, of conspiring to delay sales of a generic version of the attention deficit hyperactivity disorder medication Intuniv.

In a Friday order, U.S. District Judge Allison D. Burroughs gave a preliminary greenlight for Actavis to pay $19.9 million to the class of direct purchasers in exchange for the class permanently tossing the lawsuit against the pharmaceutical company.

Friday’s approval stayed all proceedings in litigation between the class and Actavis until an early December fairness hearing, where the settlement agreement would undergo “further consideration” for its final approval, the judge wrote.

Judge Burroughs’ order comes after Actavis’ lawyers notified the court in mid-August that it struck a deal with the direct purchaser class — although they noted that separate claims from a group of indirect purchasers remained unresolved, as the indirect purchasers’ appeal to the First Circuit against the denial of its class certification was still pending. They also said the direct purchaser class’ claims against Shire had not been resolved.

In her Friday order, the judge confirmed that the $19.9 million settlement deal did not include Shire, and litigation against the company would proceed.

Direct and indirect purchasers of Intuniv claimed a generic option of the ADHD drug was delayed because of a deal Actavis struck with Shire. The U.S. Food and Drug Administration gave Actavis approval to launch the generic in October 2012, but an Intuniv generic did not come to market until December 2014.

Under the alleged agreement, Shire would not launch its Intuniv generic during Actavis’ 180-day generic exclusivity period once it launched its own generic. In exchange, Actavis agreed to delay its generic launch and give Shire 25% of its profits earned during its exclusivity period — which the purchasers claim is an illegal reverse payment.

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The direct purchasers are represented by Hagens Berman Sobol Shapiro LLP, Faruqi & Faruqi LLP, Berger Montague, Radice Law Firm, Nussbaum Law Group PC, Kessler Topaz Meltzer & Check LLP, Cohen Milstein Sellers & Toll PLLC and Sperling & Slater PC.

The Great Smoky Mountains National Park cases, filed in 2018, allege that National Park Service failed to warn local officials and the area community about a fire that broke out Nov. 23, 2016, eventually charring more than 10,000 acres.

As wildfires ravage the West Coast, victims of a 2016 wildfire in Great Smoky Mountains National Park won a key court ruling in cases brought against the U.S. government.

The ruling, by U.S. District Judge Ronnie Greer of the Eastern District of Tennessee, refused to dismiss a set of cases brought on behalf of individuals who died or suffered property damages due to The Chimney Tops 2 Fire, which, along with a series of other wildfires that broke out at the same time, killed 14 people and injured 190. Greer is the second judge to refuse dismissal to the U.S. Department of Justice, which is defending the park’s operator, the U.S. Department of Interior’s National Park Service, in the litigation.

Ted Leopold, a partner in Palm Beach Gardens, Florida, at Cohen Milstein Sellers & Toll, who represents the owners of 400 properties and 11 families who lost loved ones due to the fire, said the case now moves to discovery, since “we have now prevailed twice on those issues, and we’re looking forward to moving aggressively on the litigation.”

The ruling—dated Sept. 8—comes as wildfires have scorched large swaths of California, Oregon and Washington, killing at least 15 people. All national parks in California, where wildfires have burned 3 million acres, have closed.

The Great Smoky Mountains National Park cases, filed in 2018, allege that National Park Service failed to warn local officials and the area community about a fire that broke out Nov. 23, 2016, eventually charring more than 10,000 acres. They are pursuing claims under the Federal Tort Claims Act (FTCA).

. . .

“We felt when the prior judge ruled, that was the end of it,” Leopold said. “But when Judge Greer took over the case, the government sort of felt like they could take another bite of the apple on the same issue. Judge Greer felt as it related to jurisdictional issues, that could be raised, and felt it was a new issue that wasn’t raised before.”

In his ruling, Greer came to a similar finding, concluding that park officials, while disseminating information through park public affairs and posting fire information on websites and social media, did not notify or inform park neighbors, park visitors and local residents of their actions, as required under the FMP.

The complete article can be viewed here.

U.S. park officials have failed to show enough was done to keep the public updated as a deadly wildfire spread from Great Smoky Mountains National Park in 2016, a judge ruled.

The decision Tuesday by U.S. District Judge Ronnie Greer in Knoxville keeps lawsuits by survivors of the blaze on track for a potential trial, though the U.S. Justice Department can still appeal.

Greer denied the government’s motion to dismiss the case, writing that officials didn’t provide sufficient evidence to show they met the notification obligations under their own fire management plan. The fire killed 14 people and caused an estimated $2 billion in losses, including about 2,500 buildings that were damaged or destroyed.

A Rhode Island federal judge has given the final green light to deals totaling about $183.5 million to settle allegations that Lupin and a pair of Allergan units worked to sideline generic alternatives of the birth control drug Loestrin.

On Tuesday, U.S. District Judge William E. Smith granted final approval to a trio of settlements in sprawling litigation that has involved Lupin Pharmaceuticals and Allergan subsidiaries Warner Chilcott and Watson Pharmaceuticals.

Specifically, the judge approved a $1 million settlement between Lupin and a group of end payors of the drug, a $62.5 million deal between third-party payors and the Warner Chilcott defendants, and a $120 million settlement between Warner Chilcott and Watson and a group of direct drug buyers.

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The end-payors and third-party payors are represented by Motley Rice LLC, Miller Law LLC, Hilliard & Shadowen LLP and Cohen Milstein Sellers & Toll PLLC.

The U.S. Securities and Exchange Commission’s long-awaited changes to the definition of an accredited investor appear incremental, but they set the stage for further expansion of already rapidly growing private capital markets where investors have fewer protections.

The SEC’s action Wednesday modestly expanded the category of accredited investors, which determines who is eligible to invest in unregistered securities, to add owners of select securities licenses, plus other wealth management firms and “knowledgeable employees” of private funds.

The expansion follows years of widespread criticism that the criteria for an accredited investor are flawed and antiquated. The definition historically has been limited to a person’s wealth or income, which determine their ability to bear a loss, without regard to sophistication.

. . .

The SEC policy follows decades of explosive growth in private markets, a less regulated corner of the market that has become the dominant source of capital raising in the U.S.

Companies raised $2.7 trillion in unregistered offerings in 2019, totaling 69% of all new capital, compared with $1.2 trillion raised in registered public offerings, according to SEC data.

That seems unlikely to change much, at least in the near term. The SEC did not estimate how many new accredited investors may result from its rule, but the agency expects the total is not “significant” and will have minimal immediate effects on private capital raising.

But wheels appear in motion for a larger population of private investors in the coming years.

. . .

The SEC’s decision not to adjust personal wealth and income thresholds for inflation is also likely to create more accredited investors over time. When current minimums were set in 1982, about 1.8% of households qualified as accredited investors, compared with about 13% now. The $200,000 annual income and $1 million net worth totals were never adjusted for inflation, though the Dodd-Frank Act removed home value from net-worth sums.

Cohen Milstein Sellers & Toll PLLC partner Laura Posner, a former bureau chief for the New Jersey Bureau of Securities, the state’s securities watchdog, cautioned that senior citizens could be vulnerable to a broader accredited investor definition. Seniors tend to have larger retirement accounts from investing during their careers, which they may depend on for living expenses.

Posner cautioned that seniors could be fraud targets since “private placements are one of the most frequent sources of fraud and enforcement actions by both state and federal regulators.”

“The left hand is not speaking to the right hand about the risky nature of these types of investments and then expanding the number of people who are available to be defrauded by investing in them,” Posner said.

A Virginia federal judge granted class certification Friday to Zetia direct buyers accusing Merck and Glenmark Pharmaceuticals of conspiring to keep a generic version of the cholesterol drug off the market, rejecting attacks on the small size of the class and the companies representing them.

U.S. District Judge Rebecca Beach Smith fully adopted the recommendation for certification of U.S. Magistrate Judge Douglas E. Miller, finding that 35 direct buyers are enough for a class, and they’ll be adequately represented by named plaintiffs FWK Holdings LLC, Cesar Castillo Inc. and Rochester Drug Co-Operative Inc., despite RDC’s bankruptcy and other issues highlighted by the drug makers.

While 35 class members puts the size in a “gray area” between 40 or more usually deemed sufficient for certification and under 20 deemed too few, Judge Smith concluded that certification here would make the case more economical to handle. She also rejected drug maker assertions that the class members’ “financial resources” weighed against concerns that they’d have trouble participating in a major litigation from across the country.

. . .

Drug buyers claim that Glenmark agreed to not release their generic version of Zetia, Merck’s “blockbuster” cholesterol drug, for about five years. In return, plaintiffs claim that Merck agreed to drop the patent infringement claims against Glenmark and would not release their own Zetia generic during the 180-day exclusivity period following Glenmark’s generic release.

Claims from other buyers are also moving forward, with Judge Miller recommending certification for a group of end-payors this month.

Judge Miller recommended certification for the direct buyers in June. His recommendation, adopted wholly Friday, called for a class of direct Zetia buyers from November 2014 until June 2017. Judge Miller, however, did cut back the proposed class pushed by the plaintiffs, excluding members who only bought generic Zetia from Par Pharmaceutical. Par, which distributed generic Zetia for Glenmark, cut a deal with plaintiffs that won final approval in March, and claims pegged to purchases from the company were deemed blocked by a federal limitation to antitrust claims for damages coming only from direct buyers.

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The direct purchasers are represented by Glasser & Glasser PLC, Hagens Berman Sobol Shapiro LLP, Hilliard & Shadowen LLP, Sperling & Slater PC, Kessler Topaz Meltzer & Check LLP, Roberts Law Firm PA, Nussbaum Law Group PC, Shepherd Finkelman Miller & Shah LLP, Berger Montague, Taus Cebulash & Landau LLP, Faruqi & Faruqi LLP, Cohen Milstein Sellers & Toll PLLC and Radice Law Firm PC.

A New York federal judge gave a preliminary green light Monday to a $15.5 million settlement between Credit Suisse and investors who sued the bank alleging it hid problems with risk management in its fixed-income franchise before $1 billion in write-downs in 2016.

The four pension funds who are leading the class asked U.S. District Court Judge Lorna G. Schofield in July to approve the $15.5 million cash settlement after the case’s court-ordered mediation in March 2019.

The December 2017 lawsuit claimed Credit Suisse and several of its executives lied about risk limits and risk controls on its 2014 annual report, and misled investors in an Oct. 21, 2015, press release and earning call about the extent of the investment bank’s positions in its distressed portfolio — collateralized loan obligations and distressed debt — and the riskiness of those investments.

Investors claimed this artificially inflated Credit Suisse’s stock price and that the price dropped when the truth came out.

The investment bank’s alleged misstatements allowed it to amass $4.3 billion in exposure in that distressed portfolio, causing massive write-downs and a loss to investors, the shareholders said.

Expanding its investments in fixed-income markets, Credit Suisse took on $1.3 billion in collateralized loan obligations and $3 billion in distressed debt, investors said.

The bank disclosed in February 2016, that it had taken a $633 million write-down because of losses in these positions.

That caused Credit Suisse’s American depositary receipts to drop from $16.69 to $14.89, according to the complaint.

The bank announced in March 2016 there was $346 million more in write-downs against its first-quarter earnings, a loss of almost $1 billion, according to the suit.

The four institutional investors filed an amended complaint in April 2018 and in February 2019, the judge denied in part and granted in part the bank’s motion to dismiss for failure to state a claim, allowing the allegations that Credit Suisse was misleading in its 2014 annual report.

Responding to the July settlement request, Judge Schofield preliminarily approved the settlement and set a hearing for Dec. 10.

The settlement class includes people who acquired American depositary receipts of Credit Suisse between March 20, 2015, and Feb. 3, 2016, and who were allegedly harmed.

. . .

The pension funds are represented by Carol V. Gilden, Daniel S. Sommers and Molly J. Bowen of Cohen Milstein Sellers & Toll PLLC, and Steven B. Singer, Kyla J. Stewart, Joseph E. White III, Dianne M. Anderson, Lester R. Hooker and Adam Warden of Saxena White PA.

The complete article can be viewed here.

Press Release Issued by: Governor of Michigan

LANSING, Mich. –  Last week, the State of Michigan agreed to a $600 million settlement of the civil lawsuits brought against the State of Michigan by Flint residents after the water supply for the City of Flint was switched to the Flint River on April 25, 2014.

Governor Gretchen Whitmer video statement.

From our first month in office, Attorney General Nessel and I made it clear to our teams that even though we inherited this situation, it was our responsibility to achieve the best possible settlement for the children and families of Flint – as soon as we could.

Protecting all Michiganders and their access to clean water is a priority for my administration to make sure nothing like this ever happens again.

What happened in Flint should have never happened, and financial compensation with this settlement is just one of the many ways we can continue to show our support for the city of Flint and its families.

This includes:

• Working to help the city complete lead service-line replacement;
• A 2021 State budget that includes millions of dollars for Flint’s ongoing nutrition programs, child health care services, early childhood programs, lead prevention and abatement, school aid, services to seniors, and other programs supporting people in Flint who were previously exposed to lead and other contaminants.
• A 2020 budget that included $120M to clean up drinking water through investments in water infrastructure;
• Creating the Office of the Clean Water Public Advocate, and the appointment of a clean water public advocate and an environmental justice public advocate; and
• New lead and copper water quality standards that are the strictest in the nation.

We acknowledge that this settlement may not completely provide all that Flint needs, and that many will still feel justifiable frustration with a system and structure that at times is not adequate to fully address what has happened to people in Flint over the last six years. We hear and respect those voices and understand that healing Flint will take a long time, but our ongoing efforts and today’s settlement announcement are important steps in helping all of us move forward.

The uncertainty and troubles that the people of Flint have endured is unconscionable.

It is time for the State to do what it can and take this critical step forward so that we can keep working towards the brighter future that the people of Flint and our entire state deserve.

An agreement has been reached on the terms of a settlement, and now the parties are working to document all the details. As the legal process moves forward, we will continue working to make sure that the people of Flint have the facts about the settlement.

The process of distributing $600 million to more than 33,000 Flint water victims will likely take months to complete, and it’s unlikely the money for the settlement will be available until the beginning of 2021.

The settlement will encompass all Flint children who were younger than the age of 18 at the time of the water switch in April 2014 as well as adults who were personally injured by lead contamination or Legionnaires’ Disease or whose property was damaged.

…

“As many of us know in litigation, especially civil litigation, we can’t do divine justice,” said Ted Leopold, co-lead class counsel. “We can’t go back many years ago and make sure this didn’t happen… But we can provide some semblance of justice.”

…

In addition to phone and text options, individuals will eventually be able to access online claimant forms. Pitt and Leopold, who now have an office in Flint, encouraged residents to use those distance options to comply with COVID-19 restrictions.

“We’re here not only to advocate and help people but those people who have no representation, we’re happy to pursue and help them in any way, shape or form we can,” Leopold said.