An appeals court panel on Tuesday approved a lower court’s plan for distributing $380 million left over from the U.S. government’s loan discrimination settlement with American Indian farmers and ranchers six years ago.
President Barack Obama’s administration agreed in 2011 to pay $680 million to settle a class-action lawsuit filed in 1999 by Indian farmers who said they were denied loans for decades because of government discrimination. The lead plaintiffs were George and Marilyn Keepseagle, ranchers on the Standing Rock Indian Reservation, which straddles the North Dakota-South Dakota border.
Only about half of the 10,000 expected claims came in. In April 2016, a judge approved a plan for the leftover money devised by the two sides in the lawsuit that included an additional payment of $21,275 to each claimant and about $300 million to groups that help Indians.
Two of the claimants appealed to the U.S. Court of Appeals for the District of Columbia Circuit, arguing that the entire $380 million should be divvied up among the class members. A three-judge panel on Tuesday voted 2-1 to uphold the district court’s finding that the plan was “fair, reasonable and adequate.”
“We look forward to putting this money to work to support farming and ranching among America’s first farmers,” said Joseph Sellers, lead lawyer for the plaintiffs. “Native American farmers and ranchers who have been fighting for themselves and their families for nearly a decade can finally bring this case to a close.”
After a 15-year legal battle, a U.S. jury will begin deliberations Wednesday over whether a U.S. security contractor must pay damages to as many as 2,000 Ecuadoran farmers who say they were poisoned by the U.S. and Colombian governments’ years-long, coca-eradication campaign.
The mostly peasant farmers in the case, represented by International Rights Advocates, say their families, animals and crops were collateral damage in recklessly executed aerial spraying efforts using glyphosate, the active ingredient in the popular weed killer Roundup, when aircraft or clouds of fumigant drifted south over the Colombia-Ecuador border.
The human rights groups say the American corporation should be held liable for its role in alleged abuses by an element of Plan Colombia, a sweeping, $10 billion U.S. counternarcotics effort launched in the 1990s that became the government’s largest foreign policy initiative in South America and is credited for helping a democratic U.S. ally end a bloody civil war.
In a first test trial involving six farmers before U.S. District Judge Ellen S. Huvelle , the plaintiffs have suggested giving each farmer damages of $50,000 to $500,000, plus potential punitive damages.
A class-action investor lawsuit against Harman International Industries led by the $7.6 billion Arkansas Public Employees Retirement System was resolved Wednesday, with the company agreeing to pay $28.25 million to settle claims that it misled investors about its personal navigation device business.
The class represented investors who purchased Harman stock between April 26, 2007, and Feb. 5, 2008. APERS Executive Director Gail Stone said in a statement that the settlement came “after a long, hard-fought litigation.” The case had been dismissed, but that dismissal was reversed in June 2015 by the U.S. Court of Appeals for the District of Columbia Circuit. After that reversal, Harman petitioned the Supreme Court to revisit it, but was unsuccessful.
Plaintiff class lead counsel Steven J. Toll, who co-chairs Cohen Milstein’s securities fraud and investor protection practice, said the appeals court found that statements made by company officials did not include “meaningful cautionary language” that would provide a so-called safe harbor from liability. “The appeals court acknowledged that statements cannot be considered meaningful when the warnings relate to risks that have already occurred or are misleading — an important victory for investors,” Mr. Toll said in a statement.
Samsung Electronics acquired Harman International Industries in March.
Shareholder Advocate – April 2017
With the addition of Laura Posner as a partner in our Securities Litigation & Investor Protection Practice Group, Cohen Milstein continues a tradition of bringing aboard attorneys with significant experience in government, in Laura’s case, as chief securities regulator for the State of New Jersey. The Shareholder Advocate sat down with her to discuss the issues facing today’s institutional investors, and how her experience in government has shaped her thinking about how private lawyers can help investors impacted by fraud and other unlawful behavior.
Shareholder Advocate: You spent the last three years as Bureau Chief for the New Jersey State Bureau of Securities, acting as the top securities regulator for the state. In that role you administered and enforced the state’s securities law and associated regulations, forming part of the first line of defense against securities fraud and other unlawful behavior. What is the state of investor protection today? What are some major threats?
Laura Posner: From a regulatory perspective, investor protection requires diligent prosecution of both small, localized securities fraud and Fortune 500-orchestrated corporate securities fraud. State securities regulators are widely considered the local “cops on the beat.” They are typically the first regulators to uncover emerging frauds, new misleading financial products and innovative deceptive sales tactics. State securities regulators work incredibly hard to obtain justice for victims taken advantage of by unregistered fraudsters or dishonest brokers who use investor money to fund lavish lifestyles or to obtain exorbitant and unwarranted fees. State securities regulators also spend considerable time and effort prosecuting Fortune 500 corporate fraud. This type of fraud can be just as devastating to its victims, but it is also often more far-reaching – both in terms of the number of victims impacted and its effect on entire markets.
Unfortunately, I do not think investment fraud will ever go away. While certain types of frauds fall out of favor or are effectively stopped by regulation or litigation, without fail, a new type of fraud emerges shortly thereafter. The consensus seems to be that over the next few years there will be considerable deregulation in the financial sector, including a roll-back of the Dodd-Frank regulations put in place following the 2008 financial crisis. If, in fact, that occurs, the market will be more susceptible to fraud and unscrupulous executives will have greater opportunity to take advantage of investors.
S.A.: While you ran the Bureau of Securities, you were in the position of being a client to outside law firms. What lessons did you learn that you can apply to your work here at Cohen Milstein?
Posner: The most important lesson I learned is to be extremely circumspect about when and whether to approach large public fund clients about a potential case. The fact is that, with few exceptions, it just does not make a lot of sense for large public pension funds to be involved in relatively small cases. Another lesson I learned is to ensure that the damage and loss figures we provide to our clients are as realistic as possible. The losses used to calculate leadership at the outset of a securities class action often are very different from recoverable damages, which are calculated using complex formulas and reliant on expert testimony. It is very important to make sure that the case is large enough to justify a large public pension fund’s involvement or, if not, that the behavior is particularly egregious or somehow tied to the state where the fund is located so as to justify the pension fund’s time and resources.
Like many other major public pension funds, New Jersey takes its responsibilities in this area very seriously. Its lawyers take an active role in overseeing litigation. They attend depositions, hearings and settlement conferences. They review complaints and briefs. It is a tremendous amount of work. So, it is also extremely important for firms like ours to do everything we can to acknowledge and alleviate those burdens. And I’m happy to say that Cohen Milstein does just that. For example, we don’t just tell our clients to look for the documents we need. We go on site, help them figure out exactly what is needed and where it is located, and handle whatever work we can directly. That’s also how you further develop a relationship: by getting into the trenches with your client and doing everything you can to help.
S.A.: You were appointed Bureau Chief in 2014 by the New Jersey Attorney General and over the next three years the Bureau returned hundreds of millions of dollars to investors and worked with criminal authorities to obtain some 20 criminal convictions. Do you think the role of state regulators will expand in an era where there may be some pullback of federal oversight of securities regulation and enforcement?
L.P.: State regulators have always played an essential role in enforcement of the securities laws, but I think that role is going to become even more critical over the next few years. We don’t know how active the next SEC Chair will be in enforcing the federal securities laws. However, a number of state attorneys general and state securities regulators have already publically stated that they intend to pick up any slack, and will continue to actively police the securities markets and take enforcement action when warranted. People sometimes mistakenly think that state regulators and state attorneys general are significantly limited in the types of cases they can pursue; but most have broad authority to investigate or prosecute any fraud with a nexus to their state. For states like New York, New Jersey, California, Texas and Florida, where thousands of companies are headquartered and millions of investors live, the authority is quite broad.
S.A.: You were a very active member of the North American Securities Administrators Association, chairing its Enforcement Section Committee, and serving on its Multi-Jurisdictional Action, Technology and State Legislation committees. You recently worked with NASAA on a “friend of the court” brief for CalPERS v. ANZ Securities, a securities case scheduled to be argued in April before the U.S. Supreme Court. Tell us about that?
L.P.: The NASAA brief, which we produced in consultation with NASAA’s in-house legal team, focused on the critical role securities class actions play in providing recovery to retail investors.
At issue, for those who aren’t already familiar with the matter, is how the Supreme Court will interpret its own 1974 decision in the American Pipe case; specifically whether courts will continue to give investors the benefit of what is known as the “American Pipe rule.” Under that rule, courts had agreed that filing a class-action lawsuit effectively stopped the clock on statutory deadlines under federal securities laws, protecting the ability of all purported class members – even investors who had not yet formally joined the lawsuit – to bring individual claims if they were unsatisfied with a class settlement or if the class was not certified. In ANZ and another case, however, the Second U.S. Circuit Court of Appeals employed a more narrow interpretation of the American Pipe rule, holding that filing a class action did not suspend – or “toll” – the three-year “statute of repose” deadline to file claims under Section 13 of the Securities Act of 1933.
While “tolling the statute of repose” may sound incredibly arcane, the fact is that if the Supreme Court agrees with the Second Circuit, it will undermine the purpose of class actions. Large institutional investors will be forced to file preemptory claims to preserve their ability to opt out of cases where they have major losses. That will cost them time and money, and clog the courts with additional cases. But at least large institutional investors have that option. Retail investors generally do not have the resources, the sophistication or large enough losses to benefit from an opt-out claim if a class action isn’t handled properly. For those investors, the class case is always going to be superior to an individual claim. Also, state regulators are among those charged by Congress to make sure any given securities class action offers investors the best available resolution of their claims. From a practical perspective, state regulators are never going to object to a settlement reached after the statute of repose expires since the claims could not be pursued elsewhere. If the Supreme Court goes the wrong way here, it will make the system incredibly burdensome and costly for institutional investors, and leave retail investors without a viable alternative if a class action fails.
S.A.: Why did you decide to return to the private sector, where you spent a number of years before joining state government, and why specifically did you choose to join Cohen Milstein?
L.P.: When I applied to law school, my plan was to work for the federal government doing civil rights litigation after I graduated. However, by the time I was in law school, the federal government was not really focused on bringing civil rights cases. I needed a Plan B. I had no interest in being a defense attorney. I wanted to help people. One of my law school professors had worked as an expert witness in the tobacco cases and encouraged me to look at plaintiffs firms and I ended up joining one. I not only enjoyed the work and got a lot of great litigation experience early on, but I felt good about the work I did every day. In my securities fraud cases I was helping to protect teachers (including my now husband!), firefighters, police officers and other public employees’ retirement savings. In my employment cases, I was helping people who lost out on promotions, salary increases and often their jobs due to discrimination. In my consumer fraud cases, I was helping consumers who had been taken advantage of by service providers and manufacturers. But, I still harbored a desire to fulfil my civic duty and work for the government. So when I was approached about the position at the Bureau of Securities, I realized that public enforcement offered an interesting way for me to keep doing the work that I love, while providing an opportunity for me to be a part of something much bigger than myself. The regulatory aspects of the job were totally new to me, so it also provided me with an opportunity to learn about a critical piece of the securities regulatory environment. Ultimately, I decided to return back to the private sector because I truly do believe that large class action litigation is the best deterrent to fraudulent behavior. Further, private class actions recover far more money for victims than the government typically does. And, from a personal perspective, I missed litigating. As New Jersey’s securities regulator, I was the client and the judge. I missed being the litigator – taking depositions and arguing in court.
As for why I chose Cohen Milstein, I didn’t want to go to a firm focused exclusively on securities litigation. While that is my primary background, I think that focusing exclusively on securities cases is short-sighted from a client perspective. I don’t want to be restricted in the types of claims I can bring on behalf of my clients. What matters is not whether I bring claims under the federal securities laws, the Sherman anti-trust act or state consumer protection statutes – what matters is achieving the best possible recovery and result for my clients and the class. Accordingly, I wanted to join a firm with expertise in multiple practice areas and with the skill set and experience to think about issues of fraud from a broad perspective. Cohen Milstein does that better than anyone in the plaintiffs’ bar. For example, the innovative cases Cohen Milstein brought alleging antitrust market manipulations pull from our expertise in both the antitrust and securities areas. I also wanted to join a firm where I would have the opportunity to work with other former government attorneys, who have found a home here at Cohen Milstein.
S.A.: As Bureau Chief, you collaborated extensively with the Securities and Exchange Commission, the Department of Justice, and other state Attorneys General and securities regulators on issues of common concern. Do you believe the appetite for this type of cooperation remains strong? What are some areas where you would like to see future efforts to focus?
L.P.: The interest in collaboration on the federal level waxes and wanes depending on who is running the various agencies at any given time. State regulators are always eager to collaborate with their federal counterparts. As NASAA’s Enforcement Chair, I worked with my counterpart at the SEC to adopt an enforcement cooperation agreement that provided a structure for how the SEC and state securities regulators should collaborate on cases where both a federal and state agency have jurisdiction. I am proud of that agreement: it not only avoids unnecessary and wasteful duplication, but it establishes a framework for mutual assistance where appropriate.
S.A.: We view investor protection as a non-partisan issue. That said, there seems to be a push to focus on securities regulators’ mission to facilitate capital formation and broaden consumer choice by reducing what some view as overly burdensome regulation. Should we be concerned about whether this will reduce vigorous rule-making, oversight and enforcement?
L.P.: There are areas of the securities laws that could benefit from some streamlining. But overall, the current regulatory structure is quite effective at ensuring that investors get the information that they need and regulators have the tools necessary to protect investors from fraud. If we are not careful, and too many regulations and requirements are cut because they are seen as too burdensome or costly, you risk opening up investors to fraud and the market to disruption. Further, there is significant empirical evidence demonstrating that robust regulatory structures lead to better and more robust capital formation, so the idea that we need to deregulate in order to encourage capital formation is simply incorrect.
Arguing on Behalf of the North American Securities Administrators Association, Cohen Milstein Urges Supreme Court to Preserve Investor Protections in CalPERS v. ANZ Securities
WASHINGTON – Urging the U.S. Supreme Court to preserve investors’ ability to exercise important securities fraud claims, the North American Securities Administrators Association, Inc. (“NASAA”), the non-profit association of state, provincial and territorial securities regulators in the United States, Canada and Mexico, has filed a brief supporting petitioners in CalPERS v. ANZ Securities, Inc., Cohen Milstein Sellers & Toll PLLC announced today. Formed in 1919, NASAA is the oldest international organization devoted to protecting investors from fraud and abuse in the offer and sale of securities.
The amicus curiae (“friend of the court”) brief filed Monday by Cohen Milstein on behalf of NASAA urges the Supreme Court to overturn rulings by the Second U.S. Circuit Court of appeals that “impose significant burdens on institutional investors and the courts, and leave small, retail investors with reduced protections.”
At issue in ANZ is how the Supreme Court will interpret its own 1974 decision, known as American Pipe. Applying the “American Pipe rule,” courts agreed that filing a class-action lawsuit effectively stopped the clock on statutory deadlines under federal securities laws, protecting the ability of all purported class members – even investors who had not yet formally joined the lawsuit – to bring individual claims if they were not satisfied with a class settlement or if the class was not certified. In ANZ and another case known as IndyMac, however, the Second Circuit employed a more narrow interpretation of American Pipe, holding that filing a class action did not suspend the three year “statute of repose” deadline to file claims under Section 13 of the Securities Act of 1933. The Supreme Court’s decision would resolve a split among appeals courts that has widened since the Second Circuit’s 2013 IndyMac ruling.
The California State Employees’ Retirement System, known as CalPERS, is asking the Supreme Court to overturn the Second Circuit and restore investors’ longstanding ability to wait until class actions are resolved before deciding whether they should “opt out” of the class and file their own cases. Oral arguments are scheduled for next month.
If the Second Circuit’s narrower interpretation of American Pipe is allowed to stand, investors will likely be forced to file preemptive lawsuits whenever they may be affected by a fraud, clogging the courts and greatly reducing the efficacy of securities class actions, the primary mechanism for investor compensation, according to the NASAA brief. The Second Circuit’s decision would also render virtually meaningless laws designed to protect members of the class and which direct state securities regulators to evaluate the relative value of class-action settlements, since individual remedies would no longer be available, according to the brief.
“ANZ and IndyMac impose significant burdens on institutional investors and the courts, and leave small, retail investors with reduced protections,” the NASAA amicus brief states. “Retail investors need class action lawsuits to protect themselves from fraud. For class actions to be robust, the interests of retail and institutional investors need to be aligned. Requiring investors to decide early-on whether to proceed with a class or opt-out and pursue an independent claim in order to avoid the running Section 13 of the Securities Act’s statute of repose undermines the continuing viability of class actions for all investors.
“Furthermore, the ANZ and IndyMac decisions undermine the ability of the courts to evaluate the superiority of class actions and state securities regulators to evaluate the reasonableness of potential class action settlements under the Class Action Fairness Act of 2005,” the brief says.
NASAA’s membership includes securities regulators in all 50 U.S. states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. The overriding mission of the group and its members is to protect investors, particularly retail investors, from fraud and abuse. The brief was written by a group of attorneys including Cohen Milstein Partner Laura H. Posner, a former NASAA member who joined the firm recently after serving as Bureau Chief of the New Jersey Bureau of Securities for three years.
NASAA said it was prompted to support CalPERS in its petition to the Supreme Court because the decision will profoundly affect the ability of investors to obtain redress in cases where unscrupulous companies and individuals commit fraud, noting that “the resolution of this case will have a significant impact on the integrity of the securities markets and the remediation of securities fraud in those markets.”
The brief was submitted by A. Valerie Mirko, Zachary T. Knepper, Christopher Staley and Mark J. Stewart of the North American Securities Administrators. Cohen Milstein Washington, D.C.-based Partner Daniel S. Sommers was counsel of record on the brief, which was also signed by Ms. Posner and Michael Eisenkraft, Cohen Milstein partners based in New York City.
About Cohen Milstein Sellers & Toll PLLC
Founded in 1969, Cohen Milstein Sellers & Toll PLLC is a national leader in plaintiff class action lawsuits and litigation. As one of the premier firms in the country handling major complex cases, Cohen Milstein, with 90 attorneys, has offices in Washington, D.C., Chicago, New York City, Philadelphia, Palm Beach Gardens, Fla., and Raleigh, N.C. For more information, visit https://www.cohenmilstein.com or call (202) 408-4600.
On February 13, 2017, Judge Keith Ellison of the United States District Court for the Southern District of Texas granted final approval to the settlement reached between BP and Lead Plaintiffs for the “post-explosion” class. That settlement is in the amount of $175 million, payable during 2016-2017. In granting final approval, Judge Ellison said the following about counsel:
“Let me also say, this has been a long process, I know, more than six years, and I want to reiterate how fortunate I feel to have been — worked with such able lawyers on both sides. It’s been one of the highlights of my career as a Judge. We had difficult issues and even some novel issues, and through it all you provided me with the highest standards both of scholarship and of advocacy and I am grateful. If I can ever do anything for your careers, please — please let me know.”
The settlement covers investors who purchased BP American Depositary Shares between April 26, 2010 and May 28, 2010. This settlement does not resolve other BP securities-related litigation in connection with the Gulf of Mexico oil spill.
The Walt Disney Co., Pixar and Lucasfilm Ltd. LLC have agreed to a $100 million deal that would settle allegations in a class action that they perpetuated a “no poach” agreement with other companies over the hiring of animators, according to a filing in a California federal court on Tuesday.
Disney, Pixar and Lucasfilm, along with Two Pic MC LLC, agreed to pay the money to settle allegations that they violated federal and state antitrust and unfair competition laws by entering into agreements with other companies in the animation industry to not poach one another’s employees and by sharing compensation information with the aim of depressing wages, according to the proposed settlement agreement.
Animators would receive a prorated share of the money, based on their individual compensation during the class period compared to the total compensation during the period by all members of the class, according to the settlement, which must be approved by the Northern District of California.
The settlement would represent the last deal in the class action, with Dreamworks Animation SKG Inc. already agreeing to settle the claims for $50 million and other defendants, including Twentieth Century Fox Film Corp. subsidiary Blue Sky Studios Inc. and Sony Pictures Corp. units Sony Pictures Imageworks Inc. and Sony Pictures Animation Inc., agreeing to settle for a combined $19 million, according to court documents.
. . .
The animators are represented by Jeff D. Friedman, Shana E. Scarlett, Steve W. Berman and Jerrod C. Patterson of Hagens Berman Sobol Shapiro LLP, Marc M. Seltzer, Matthew R. Berry, Elisha Barron, Steven G. Sklaver and John E. Schiltz of Susman Godfrey LLP, and Daniel A. Small, Brent W. Johnson, Jeffrey B. Dubner and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC.
A federal grand jury in Detroit has indicted three former employees of Takata, charging them with concealing deadly defects in the Japanese company’s automotive air bag inflators.
The indictments on six counts of conspiracy and wire fraud were returned Dec. 7 and unsealed Friday, January 13 just hours ahead of a Justice Department news conference to announce a corporate penalty against the Japanese company.
The charges were filed against Shinichi Tanaka, Hideo Nakajima and Tsuneo Chikaraishi. All three were long-time executives at Takata until 2015, and all three worked both in Japan and the U.S. Takata’s U.S. operations are headquartered in the Detroit suburb of Auburn Hills, Michigan.
The full segment can be viewed at CBS Evening News.
A Texas federal judge preliminarily approved a $175 million settlement between BP PLC and a class of investors alleging the company downplayed the magnitude of the Deepwater Horizon oil spill in the weeks following the blowout, rejecting a bid by 135 institutional investors to modify the settlement opt-out procedures.
BP’s settlement resolves a certified class action alleging the company misrepresented the seriousness of the explosion and its aftermath, in which 11 workers were killed and an estimated 4.9 million barrels of crude oil were spilled into the Gulf of Mexico. The 135 institutional investors — who are bringing their own suits apart from the class action, but still within the same multidistrict litigation — had urged the court in September to allow them to be excluded from the class if they wanted, simply by virtue of having filed their own lawsuit against the company, rather than having to follow the opt-out procedures.
Cohen Milstein serves as lead counsel for the settlement class.
A settlement has been reached between a group of animation workers and DreamWorks Animation in a class action lawsuit alleging that DreamWorks and other companies violated antitrust laws by conspiring to set animation wages via non-poaching agreements.
The settlement provides for a cash payment of $50 million to a settlement fund. The plaintiffs already had reached settlement agreements with defendants Sony Imageworks and Blue Sky Studios. Other defendants in the case include the Walt Disney Co., Lucasfilm, Pixar and ImageMovers. Those cases are still pending.
The settlement still must be approved by U.S. District Judge Lucy Koh. A hearing is scheduled for January 19, 2017.