The U.S. Supreme Court handed workers a big win Wednesday by preserving a six-year deadline to file ERISA class actions as the standard, but employers have already seized on language in Justice Samuel Alito’s opinion as a road map for how to impose a shorter deadline.

Justice Alito ended the unanimous opinion — which affirmed the Ninth Circuit’s ruling that the Employee Retirement Income Security Act grants workers six years to sue except under special circumstances — by listing several tactics employers can use to invoke a three-year statute of limitations.

. . .

The case pitted Intel Corp.’s 401(k) plan managers against a former worker in a battle over what it means to have “actual knowledge” of an ERISA fiduciary breach.

If an employer can prove to a judge that a worker gained “actual knowledge” of a breach on a certain day, the worker has three years from that date to sue. If the employer can’t, then the worker has six years to sue from the day the breach occurred or, in cases of fraud or concealment, from the day the breach came to light.

Intel’s plan managers argued that workers gain “actual knowledge” of a fiduciary breach the day they receive financial disclosures from the plan, whether they read and understand the disclosures or not.

The former Intel employee, Christopher Sulyma, argued that “actual knowledge” of a fiduciary breach means what it says: real awareness that misconduct occurred.

The justices roundly rejected the Intel plan managers’ argument, ruling that the Ninth Circuit got it right when it applied a plain-language reading of the words “actual knowledge.”

. . .

The 14-page opinion devotes significant ink to refuting the employer-side argument, but it ends with two paragraphs that give employers a clue about how they might argue that “actual knowledge” applies.

“Nothing in this opinion forecloses any of the ‘usual ways’ to prove actual knowledge at any stage in the litigation,” Justice Alito said, listing some of those ways.

He also tossed in a new idea, right at the end: “Today’s opinion also does not preclude defendants from contending that evidence of ‘willful blindness’ supports a finding of ‘actual knowledge.'”

. . .

Employee advocates were pleased with the high court’s ruling Wednesday, calling it important for workers.

Michelle Yau, a partner at Cohen Milstein Sellers & Toll PLLC, said the ruling gave her hope that the Supreme Court may resolve other circuit splits that could be remedied by a plain-language reading of ERISA.

“The straight textualist approach was refreshing, and for ERISA, which some find to be a complicated statute, it’s really nice to have a super simple, well-reasoned decision that is right,” Yau said. “It’s amazing how much these issues can percolate in the courts, and courts seem to be a little bit confused. And when someone says it so clearly, it seems so obvious.”

Investors in GreenSky Inc. have asked a New York federal judge to certify their proposed class action accusing the financial technology startup of making misleading statements ahead of its initial public offering, telling the court there is “no question” the action should be certified.

The shareholders allege the digital lender filed a deceptive registration statement with the U.S. Securities and Exchange Commission that failed to disclose key planned changes that could affect revenue.

. . .

The November 2018 suit claims GreenSky — which arranges loans between merchants and consumers — along with its directors and its underwriters in the IPO didn’t mention in its registration statement that it planned an expansion into the elective health care field that was shifting its focus away from solar panel merchants.

The digital lender raised $874 million in an upsize IPO in May 2018 that priced at the top of its range at $23 per share, but GreenSky later lowered its full year 2018 guidance, triggering a stock drop of 60 percent from the IPO price, the investors said.

In November last year, U.S. District Judge Alvin K. Hellerstein swept aside GreenSky’s dismissal attempt, expressing skepticism that the startup lender’s disclosures were sufficient and saying “the prospectus cries out for an explanation.”

. . .

The investors are represented by Alice Buttrick, Ji Eun Kim, S. Douglas Bunch and Steven Jeffrey Toll of Cohen Milstein Sellers & Toll PLLC, and Max Raphael Schwartz of Scott & Scott LLP

Many top drugmakers have faced allegations that they offered free services as kickbacks to doctors, and Johnson & Johnson is confronting those claims in a newly unsealed whistleblower lawsuit.

In the suit, a former employee says J&J’s Janssen unit helped doctors set up high-volume “infusion suites” and offered other services to amp up Remicade and Simponi prescriptions for more than a decade. Johnson & Johnson disclosed the suit in its annual Securities and Exchange Commission (SEC) filing, published Tuesday.

. . .

To help set up infusion suites, J&J “provided advice regarding the optimal design and organization of the infusion suites so as to fit in as many infusion chairs as possible and in turn optimize scheduling to maximize the infusion suites’ profitability,” the suit says.

“If patients find an infusion suite to be aesthetically pleasing and comfortable, they will pay more and travel further to receive their infusions there,” according to the lawsuit.

The drugmaker first disclosed the federal investigation on the issue back in 2017. In January, J&J’s Janssen unit was served with the unsealed suit, J&J said in its annual SEC filing Tuesday.

J&J’s immunology blockbuster Remicade was once the company’s top medicine by sales, but it has started to slide due to biosimilar competition. Last year, sales of the med fell 18% to $4.38 billion. Sales for Simponi Aria, which treats rheumatoid arthritis, psoriatic arthritis and ankylosing spondylitis, grew 5% last year to $2.19 billion.

“The Massachusetts Institute of Technology has agreed to make its website and online educational videos more accessible to people who are deaf and hard of hearing. It is part of a settlement in a federal lawsuit brought by the National Association of the Deaf and other plaintiffs. The announcement comes months after the plaintiffs reached a similar agreement with Harvard University. The group accused the schools of discrimination against people with hearing disabilities by not adequately or accurately captioning videos of lectures and other programs posted online.”

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Settlement with MIT Follows Similar Agreement with Harvard University to Caption Online Content

Agreements Represent the Most Comprehensive Set of Online Accessibility Requirements

BOSTON—The National Association of the Deaf (NAD) announced today a landmark settlement with the Massachusetts Institute of Technology (MIT) that institutes a series of new guidelines to make the university’s website and online resources accessible for people who are deaf and hard of hearing. The settlement follows a similar agreement with Harvard University in November 2019, which together represent the most comprehensive set of online accessibility requirements in higher education and provide a new model for ensuring worldwide online and digital accessibility in academia and business for people who are deaf and hard of hearing.

MIT, one of the most celebrated academic research institutes in the world, has agreed to provide industry standard captioning for publicly-available online content, including video and audio content posted on MIT.edu as well as MIT’s YouTube, Vimeo, and Soundcloud pages, certain live-streaming events and online courses such as Massive Online Open Courses (MOOCs), MITx and MIT OpenCourseWare.

The terms of the settlement are included within a consent decree, which can be enforced by the court. The court must approve the consent decree before it may become effective.

MIT must also implement a public process to manage these requests. MIT is also required to submit reports every six months beginning in June 2020 to NAD and the Disability Law Center with information about the number of requests received, among other details.

This settlement was reached four years after this litigation began in 2015, when it was filed in the U.S. District Court for the Western District of Massachusetts as a class action lawsuit. The lawsuit was prompted by the recognition that, notwithstanding the description of MIT’s online resources as “open and available to the world,” many of its videos and audio recordings lacked captions or used inaccurate captions. MIT had no published policies in place to ensure these learning tools were accessible to people who are deaf and hard of hearing. In the United States alone, there are approximately 50 million deaf and hard of hearing people.

During the litigation, MIT filed a motion to dismiss the case. In response the court ruled that federal laws prohibiting disability discrimination covered MIT’s online content.

The named plaintiffs in this class action lawsuit, NAD, C. Wayne Dore, Christy Smith and Lee Nettles, were represented by Cohen Milstein Sellers & Toll, the Disability Law Center, the Disability Rights Education & Defense Fund, the Civil Rights Education and Enforcement Center, and also the NAD.

“The settlements with MIT and Harvard usher in a new era of accessible online learning in higher education. The civil rights mandate is clear – all colleges and universities must ensure that the video and audio content on their websites are accessible through quality captioning.” said Howard A. Rosenblum, Chief Executive Officer, National Association of the Deaf.

“Providing equal access through new and evolving technologies is at the core of the Americans with Disabilities Act. This announcement opens up a huge new world of learning for the tens of millions of people who were previously unable to access MIT’s wealth of online educational resources,” said Arlene B. Mayerson, Directing Attorney at the Disability Rights Education & Defense Fund.

“These agreements with MIT and Harvard are ground-breaking and historic, opening new doorways in learning for deaf and hard-of-hearing students and professionals and setting a new standard for civil rights enforcement for accessibility in online learning. We urge other institutions that share their research, case studies, and course work to the public to follow this precedent to ensure their content is accessible to deaf and hard of hearing people, worldwide,” said Joseph M. Sellers who heads the civil rights practice at Cohen Milstein Sellers & Toll.

“There’s no excuse for any institution to shortchange the millions of people who are deaf and hard of hearing. We cannot pick and choose what types of accessibility we want to provide—it’s a fundamental right that everyone deserves. We’re pleased the agreement ensures all learners will be treated equally,” said Amy F. Robertson, Co-Executive Director of the Civil Rights Education and Enforcement Center.

“These agreements represent the most comprehensive framework for ensuring that higher education institutions make their online and digital resources available for the deaf and hard of hearing. Nobody should be denied the opportunity to an education because of a disability, and the digital doors of MIT are now open for everyone,” said Marlene Sallo, Executive Director of the Disability Law Center.

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The Massachusetts Institute of Technology has agreed to provide captions for more of its publicly available online videos as part of a settlement announced Tuesday in a case that accused the school of discriminating against people who are deaf or hard of hearing.

The settlement comes months after a similar deal was reached in a lawsuit brought against Harvard University by the National Association of the Deaf, which said the schools were discriminating against people with hearing disabilities by not adequately or accurately captioning videos of lectures and other programs it posts online.

“Why would you not make your content accessible to everyone?” said Howard Rosenblum, CEO of the association. “We want to make sure that moving forward all the universities and colleges make themselves aware.”

The lawsuits brought against MIT and Harvard in 2015 said people who were deaf or hard or hearing couldn’t benefit from the schools’ wealth of online educational resources because they had inaccurate captions or none at all.

Harvard and MIT both tried to dismiss the cases, arguing that the law doesn’t require them to provide captioning for all their online content. But a judge ruled last year that content produced by and posted by the universities was subject to federal civil rights law.

Under the settlement, MIT has agreed to provide captions for any audio or video content it creates and posts on its website, as well as the school’s pages on outlets like YouTube and SoundCloud. It must also provide live captions for certain events that are streamed online, according to the settlement.

Anything posted before Jan. 1, 2019, must be captioned or removed from public view only if someone requests it, according to the consent decree.

The agreement must be approved by a judge before it goes into effect.

This Associated Press article was also picked up by and published in Pickup in The New York Times,  The Washington Post, ABC News, Fox Business, PBS Newshour, US News and World Report, Charlotte Observer, Miami Herald, San Antonio Express-News, The Sacramento Bee, Kansas City Star, San Francisco Chronicle, Connecticut Post, News & Observer, SF Gate, Seattle Times, Seattle Post-Intelligencer, The Boston Herald, New York Post and other media outlets around the United States.

Cohen Milstein is co-counsel in these civil rights class actions against MIT and Harvard

A settlement has been reached in the case of a Georgia couple who evicted a tenant for inviting an African American family to her home.

As WABE’s Maria White Tillman reports, Allen and Patricia McCoy acknowledged they discriminated against their tenant, Victoria Sutton, in 2018 for having African American guests in the Gordon County apartment she rented from them.

. . .

Sutton’s attorney, Brian Corman, says it was important to his client for the McCoys to acknowledge their wrongdoing.

“We certainly recognize that the defendants have come clean. They’ve acknowledged the complete accuracy of the statement. And they admit to having violated civil rights and fair housing laws when they evicted Ms. Sutton and her family from their home.”

As part of the settlement, the McCoys had to apologize and pay Sutton $150,000 for violating the Civil Rights and Fair Housing Acts.

Listen to a recording.

A Georgia couple who evicted a white tenant after she brought an African-American family into her home has admitted to making a series of racist remarks to the woman in a tape-recorded phone call — telling her, for instance, that they don’t “allow n—–s” or “black dogs” on their property.

The homeowners, Allen and Patricia McCoy, also apologized and agreed to pay the mother of two $150,000 in damages, according to a lawsuit settlement obtained by the Daily News on Thursday.

Victoria Sutton was kicked out of her rented Adairsville home in late 2018, just months after her landlord saw her saying goodbye to a black friend outside the property, according to the complaint. Allen McCoy knocked on Sutton’s door minutes later, told her she should be ashamed of herself, threatened to call Child Protective Services and gave her two weeks to move out, the lawsuit states.

The tenant then called Patricia McCoy to discuss the disturbing incident and explain that she had nowhere to go, but the landlady sided with her husband and made a series of racist comments.

“I don’t put up with n—–s in my (house) and I don’t want them in my property,” the landlady told her.

Sutton agreed to dismiss the lawsuit after the couple admitted to making those horrific statements and acknowledged the eviction violated the Civil Rights Act and the federal Fair Housing Act.

. . .

The lawsuit was filed months later in partnership with the American Civil Liberties Union.

“Racial discrimination is as real and insidious today as it was sixty years ago and must be called out and stopped,” attorney Brian Corman, of the law firm Cohen Milstein Sellers & Toll, said in a statement. “It was of the utmost importance to Ms. Sutton that the McCoys acknowledge and apologize for their wrongdoing and for the harm they have caused, and we hope this lawsuit shows that racism will not be tolerated in any form.”

A Georgia woman evicted for inviting a black family to her house for playdates with their children will be paid $150,000 by her former landlords to settle a discrimination lawsuit.

Victoria Sutton filed the complaint in July against Patricia and Allen McCoy of Calhoun, Georgia. Sutton said the couple made racist statements and threatened to physically harm her if she contested the eviction.

“My landlord’s behavior was not just immoral, it was also illegal,” Sutton said in a statement. “I’m glad to see the McCoys are being held accountable and hope this settlement brings us one step closer to creating a more just society where people of all races can live together without fear.”

Sutton’s attorney, Brian Corman, said the McCoys acknowledged they used racial slurs before evicting Sutton and apologized to her.

. . .

Corman said the eviction violated the Civil Rights Act and the Georgia Fair Housing Act, which prohibits landlords from discriminating against tenants and their guests on the basis of race. Both Sutton and the McCoys are white.

“It’s the kind of case that many people might think would have happened generations ago,” Corman said. “But it really shows how persistent racial intolerance has been in the country.”

The Federal Trade Commission is slated to defend its antitrust win over Qualcomm’s licensing practices before the Ninth Circuit on Thursday in what could be the most public display yet of an intense divide between the nation’s two antitrust enforcers.

The U.S. Department of Justice’s Antitrust Division was granted permission to participate in the oral arguments in support of Qualcomm, pitting the FTC lawyers in-person against their DOJ counterparts after they have so far traded blows only in court filings and public comments.

But even without the unprecedented interagency confrontation, the case is noteworthy to both antitrust and intellectual property lawyers because the FTC’s case attacking core pieces of Qualcomm’s business model addresses the intersection of patent rights and antitrust law.

. . .

In participating in Qualcomm oral arguments Thursday, the DOJ may want to be careful what it wishes for, according to Daniel McCuaig, a former longtime DOJ antitrust litigator who is now a partner at Cohen Milstein Sellers & Toll PLLC.

DOJ may face tough questioning from the judges and could concede that some conditions must be imposed on Qualcomm’s licensing practices, he said.

“A key concession from the DOJ could swing things in the FTC’s favor,” McCuaig said in an email.

The Qualcomm case also appears to represent a philosophical divide between FTC enforcers, who say that patent rights can be competitively abused and must be constrained by commitments that SEP holders make to broadly license their technology on fair terms, and DOJ enforcers, who have argued that licensing commitments almost never trigger antitrust law.