The decision overturns a lower court ruling and reinstates claims against Chiquita in a historic lawsuit over the company’s role in funding paramilitary groups in Colombia.

Atlanta, Ga.–Today, the Eleventh Circuit Court of Appeals ruled that several families suing Chiquita Brands International for its role in funding paramilitary death squads in Colombia can proceed toward a jury trial.

The Eleventh Circuit reversed a September 2019 summary judgment decision by a federal judge in Florida, who had ruled the victims lacked admissible evidence showing that their family members were murdered by the paramilitaries. In reversing the district court, the Eleventh Circuit found substantial evidence of paramilitary involvement in the killings.

EarthRights International initially filed the suit in 2007 and represents families of hundreds of victims murdered, tortured, and injured by the United Self-Defense Forces of Colombia (AUC), an outlawed paramilitary organization that Chiquita admitted to illegally funding.

EarthRights General Counsel Marco Simons issued the following statement: 

“Today’s order was a milestone in this historic lawsuit. The families have been waiting years to have their day in court despite strenuous efforts by Chiquita to have the case dismissed. Now that the appellate court has reinstated the case, the families are looking forward to a jury trial.

“Chiquita has long admitted that it illegally funded the AUC. This ruling finally gives our clients the chance to show to the court, and the world, what everyone in Colombia knows: that the AUC used Chiquita’s support to engage in brutal atrocities against civilians in the banana-growing regions of Colombia. There is overwhelming evidence that the AUC murdered thousands of Colombians, including our clients’ family members there.

“Much of this evidence has been developed over more than a decade through the Justice and Peace process in Colombia. The district court rejected evidence from that process, and we are relieved that the appellate court has appropriately considered the results of Colombia’s own justice system and overturned the erroneous decision of the lower court.

“Perhaps the most significant aspect of this ruling is that it accepts the admission of circumstantial evidence and expert testimony to show that murders that occurred at times and places where the AUC was in control and in a manner that fits with the AUC’s methods and motives, to show that the murders were committed by the AUC. That conclusion will apply to hundreds if not thousands of the victims in this case.”

Agnieszka Fryszman, plaintiffs’ counsel at Cohen Milstein added:

“We are very pleased that the Eleventh Circuit carefully and thoroughly evaluated the district court’s approach to Plaintiffs evidence – in 104 pages – and unanimously reversed the lower court’s summary judgment decision. This is a very important case for corporate accountability. Chiquita has already admitted it paid over a million dollars to the AUC, a paramilitary group designated as a foreign terrorist organization by the United States. The Eleventh Circuit has now found that the Plaintiffs presented sufficient admissible evidence to show that the AUC killed their loved ones. After years of briefing these issues, we look forward to presenting our evidence to a jury and seeking justice for our clients.”

Background

For nearly a decade in the 1990s and early 2000s, Chiquita Brands International made regular payments to the AUC, totaling more than $1.7 million. In turn, the AUC engaged in a campaign of violence against communities in Colombia’s banana-growing regions, including trade unions, political opponents, and Indigenous advocates. In 2001, the U.S. government classified the AUC as a terrorist organization. Chiquita pled guilty to a federal crime for funding the AUC and paid a $25 million fine to the U.S. government but has not yet compensated the families of the AUC’s victims.

Thousands of victims, represented by several groups of lawyers, have filed suit against Chiquita in federal courts across the country; those suits were consolidated and are being heard in federal district court for the Southern District of Florida, in West Palm Beach. The cases for a dozen killings were selected as “bellwether” cases to proceed as examples. The district court ruled in September 2019 that these bellwether cases could not proceed to trial because the plaintiffs had not submitted sufficient evidence that their family members had been murdered by the AUC.

These bellwether cases include two of EarthRights’ clients, known by the pseudonyms John Doe 7 and Jane Doe 7. John Doe 7’s son was murdered by AUC paramilitaries, and the local paramilitary commander admitted this to John Doe 7 himself. Jane Doe 7’s husband, a labor activist, was also murdered by the AUC; his murder fits a pattern of the AUC targeting union leaders. The court of appeals found that both plaintiffs had submitted sufficient evidence on this issue to proceed to trial.

EarthRights’ co-counsel includes Paul L. Hoffman of Schonbrun Seplow Harris Hoffman & Zeldes LLP, who argued the appeal; Cohen Milstein Sellers & Toll PLLC; and attorneys Judith Brown Chomsky, Anthony DiCaprio, and Arturo Carrillo.

Contact:
Kate Fried, EarthRights International
(202) 257.0057
kate.fried@earthrights.org

After 20 Years of Litigation, Victims’ Stories of Abuses by Security Forces Finally Told

WASHINGTON DC – A federal judge today released a detailed and pointed 86-page opinion that largely denied ExxonMobil Corporation’s motion for summary judgment in a long-running human rights lawsuit, brought by eleven Indonesian citizens.  This decision paves the way for trial in the hotly contested case.

The Plaintiffs, represented by Cohen Milstein Sellers & Toll PLLC, allege that ExxonMobil contracted to use Indonesian soldiers to provide security at ExxonMobil’s natural gas facility in Aceh, Indonesia. The Court ruled that Plaintiffs eyewitness testimony and ExxonMobil’s own internal documents would allow a reasonable jury to find that these security personnel subjected the Plaintiffs or their loved ones to assault, torture, extrajudicial killing, and other abuses.

In issuing the ruling, Judge Royce C. Lamberth’s 86-page opinion pointedly stated, “With only limited exceptions, defendants remaining arguments – about causation, quantifiable loss, ExxonMobil’s liability, and due process – are entirely meritless.” (Pg. 3 – 4) The Court repeatedly found that ExxonMobil’s characterizations of the evidence was “wrong” or “simply wrong.” (P 37, 45, 46, 72)

“We are gratified that the Court was moved by the evidence we presented from more than a dozen eyewitnesses and agreed that this important human rights case against ExxonMobil should move forward to trial,” said Agnieszka Fryszman, attorney for the plaintiffs and chair of Cohen Milstein’s Human Rights Practice. “This case has been up and down to the Supreme Court and tied up in pretrial litigation for over 20 years. This is a big turning point for our clients who have stuck it out for so long in the hopes of obtaining justice. We look forward to presenting our evidence to a jury.”

The opinion details that ExxonMobil executives were aware of the Indonesian military’s reputation. For example, during this period, atrocities committed by the Indonesian military were widely reported in international press, including by Business Week’s Singapore Bureau.  “Defendants’ executives have acknowledged their awareness of the military’s human rights abuses.” (Pg. 5)

The Court also found that the record reflects ExxonMobil’s increasing involvement and influence in the military’s security operations. By December 1999, the soldiers were “dedicated exclusively” to providing security for these operations. (Pg. 8) By late 2000, approximately 1,000 soldiers were assigned to defendants’ Indonesian oil operations. (Pg. 9)

Most importantly, the Court devoted the bulk of its opinion to the evidence presented in support of ExxonMobil’s liability for each Plaintiffs’ injury, explaining that under Indonesian law (which is the law governing the claims):

“For the direct liability claims, there must be sufficient evidence from which a reasonable jury could conclude that soldiers who harmed plaintiffs were the same ones that defendants negligently hired, retained, or supervised. For the indirect liability claims, there must be sufficient evidence from which a reasonable jury could conclude that 1) “an employment or representation relationship” existed between the soldier and defendants (or that the soldier was in facet assigned to guard defendants’ operations), and 2) that were is a “functional connection” between the soldier’s wrongful act and the work that they were directed to perform.”” (Pg. 33)

Examples of Plaintiff testimonies are summarized below.

  • Jane Doe I alleged she was assaulted in 2001 when she was eight months pregnant by a soldier who, among other things “forced her to jump up and down repeatedly.” (Pg. 33)  She identified the soldier as one of the soldiers assigned to ExxonMobil, and her testimony was corroborated by a witness who waited daily for the school bus outside ExxonMobil’s facility and could confirm identifying information. (p.33) The Court found that “a reasonable jury could conclude that the soldier was one who was tasked with providing security for defendants” and that there was a sufficient “connection between the soldier’s wrongdoing and his employment relationship with defendants.”
  • Jane Doe II alleged that her husband was shot in 2000 while working in his rice paddy by members of ExxonMobil’s security personnel. The Court wrote “Defendants argue there ‘is no evidence’ connecting the shooting to defendants. They are wrong.” (Pg. 37)
  • Jane Doe III’s husband “was a traveling fish merchant who regularly stopped” at a market “where Exxon’s Bachelor Camp was located.” (Pg. 44)  She presented evidence from an eyewitness who had worked at ExxonMobil’s “Bachelor Camp” facility and who operated a small kiosk nearby.  After reviewing testimony about the actions by guards at Bachelor Camp and the death of John Doe IX, the Court ruled that “[a] reasonable jury could find that the soldiers who killed John Doe IX were the same soldiers assigned to guard Bachelor Camp” and “that defendants negligently hired and supervised.”  (Pg. 44)
  • Jane Doe IV presented testimony from two eyewitnesses who recognized the soldiers who shot her husband as he worked in his rice paddy as the same soldiers at ExxonMobil’s gate who had often bullied the boys on their way to and from school (p46). The Court’s opinion explains that “eyewitnesses recognized the soldiers from Cluster 4” (where ExxonMobil was operating), “where they worked inside and outside the fence.”  (Pg. 46).  Based on its review of the evidence, the Court ruled that “[a] reasonable jury could find that the soldiers who murdered Jane Doe IV’s husband were the same soldiers that defendants negligently hired and supervised.”  (Pg. 47)
  • Jane Doe V: The Court cited testimony that “[s]ometime in January 2001, John Doe I went missing.  Eventually, after several days, soldiers returned John Doe I to his home.  When he arrived home, John Doe I was wearing only his underwear, his hand had been cut off, and he was missing an eye.”  (Pg. 47)  After reviewing evidence of statements by John Doe I that he was taken “by soldiers working at Point A” (a central location for ExxonMobil’s operations), the Court ruled that “a reasonable jury could conclude that the soldiers who abducted and tortured John Doe worked at Point A and provided security for defendants.”
  • John Doe VII “alleged that, in January 2001, he was `accosted by members of ExxonMobil’s security personnel’ who took him inside of a warehouse at an ExxonMobil-operated facility and beat him severely before releasing him the next day.” (Pg. 69) Plaintiffs presented evidence from two eyewitnesses, including one who was held with him overnight by ExxonMobil security in a warehouse used by ExxonMobil. (Pg. 70) The Court noted that the witnesses “even identified the specific soldiers by name” and found the Defendants contentions that there was no “firsthand evidence linking his injuries to defendants” to be “meritless.” (Pg. 69)

Other Case Background

During his confirmation, Justice Kavanaugh described the ExxonMobil case as one of the ten most significant cases heard during his tenure on the D.C. Circuit.

About Cohen Milstein Sellers & Toll, PLLC

Cohen Milstein Sellers & Toll PLLC is a premier U.S. plaintiffs’ law firm, handling high-profile and often precedent-setting litigation, including cross-border Human Rights litigation. With over 100 attorneys across the country, Cohen Milstein has offices in Washington, DC, Chicago, IL, New York, NY, Palm Beach Gardens, FL, Philadelphia, PA, and Raleigh, NC. For additional information, please visit www.cohenmilstein.com or call (202) 408-4600.

RICHMOND, VA – Last evening, Equality Virginia, the Commonwealth’s leading advocacy organization for lesbian, gay, bisexual, transgender and queer (LGBTQ+) equality, along with 35 partners and school board leaders across the Commonwealth, filed an amicus brief in support of transgender students in Virginia schools.

The brief asks the Supreme Court of Virginia to uphold the Circuit Court for the County of King William’s dismissal of Peter Vlaming’s lawsuit against the West Point School Board, which rejected Mr. Vlaming’s claims that his firing for violation of the West Point School Board’s anti-discrimination and anti-harassment policies violated his rights under Virginia law.

The West Point School Board has a compelling interest in protecting its transgender students from the harms associated with discriminatory treatment. It must also comply with Title IX, which prohibits discrimination against transgender children on the basis of their gender identities, and the Equal Protection Clause of the Fourteenth Amendment. To serve these interests and comply with the law, the West Point School Board must treat its transgender students equally—including by ensuring that its staff addresses transgender students, like their cisgender peers, with the names and pronouns that reflect their gender identity. The illusory burden asserted by Mr. Vlaming cannot stand against this compelling interest.

An amicus curiae brief, or “friend of the court” brief, is filed by organizations or persons not directly involved in a case to provide information related to issues to help courts reach decisions.

The groups point to the negative and harmful experiences of transgender and non-binary students and their families in Virginia schools as reasons why anti-discrimination policies and practices, such as using a student’s correct pronouns, can mitigate these harms.

“Transgender and non-binary students, when compared to their cisgender peers, face physical abuse, bullying, and extreme emotional harm at higher rates, which impact their well-being and education,” said Narissa S. Rahaman, Executive Director at Equality Virginia. “The West Point School Board’s antidiscrimination and anti-harassment policies aim to counteract and prevent those harms. We know that transgender students thrive when they are supported by an inclusive school environment, which includes using their correct pronouns.”

“The harm of differentiating transgender students from their peers and failing to affirm their identities is well-established in the courts,” said S. Douglas Bunch, Partner at civil rights law firm Cohen Milstein Sellers & Toll. “Sadly, this effect is magnified when the hostile actor is a teacher. School policies, such as one of using pronouns that reflect a transgender student’s identity, are there to mitigate these harms and allow all students to thrive in school.”

According to GLSEN’s 2019 National School Climate Survey, Virginia schools were not safe for most LGBTQ+ secondary school students. In addition, many LGBTQ+ students in Virginia did not have access to important school resources, such as an LGBTQ+-inclusive curriculum, and were not protected by supportive and inclusive school policies.

School-based supports such as supportive and inclusive school policies, school personnel who are supportive of LGBTQ+ students, GSAs, and LGBTQ+-inclusive curriculum resources can positively affect school climate for LGBTQ+ students. Findings from GLSEN’s 2019 National School Climate Survey demonstrate that students attending schools with these resources and supports report more positive school experiences, including lower victimization and absenteeism and higher academic achievement.

This is the second amicus brief of its kind that Equality Virginia and Cohen Milstein Sellers & Toll have filed on behalf of the welfare of transgender and non-binary students in Virginia. On July 9, 2021 Equality Virginia and over 50 partners and school board leaders across the Commonwealth filed a brief in support of Virginia’s model policies to make schools safer and inclusive for transgender students.

Groups signing on to the amicus brief include:

Diversity Richmond

Equality Loudoun

Farmville Pride

FCPS Pride

GLSEN NoVA

GLSEN RVA

GLSEN Southwest Virginia

Hampton Roads Pride

He She Ze and We

Health Brigade

Hill City Pride

PFLAG Blue Ridge

Planned Parenthood Advocates of Virginia

Pride Liberation Project

Rappahannock Region Transgender Support (RRTS)

Restoration Fellowship RVA

Richmond Triangle Players

Rockbridge LGBTQIA+ Alliance

Side by Side VA, Inc.

Southeastern Transgender Resource Center

Stonewall Sports Richmond

Transgender Assistance Program Virginia

UGRC/Black Pride RVA

Virginia Anti-Violence Project

Virginia Council on LGBTQ+

Virginia Pride

Honorable Barbara J. Kanninen (Arlington County)

Honorable David Priddy (Arlington County)

Honorable Lisa Larson-Torres (Chair, Charlottesville City)

Honorable Karl V. Frisch (Fairfax County)

Honorable Laura Downs (Chair, Falls Church City)

Honorable David Ortiz (Falls Church City)

Honorable Lori Silverman (Falls Church City)

Honorable Elizabeth Warner (Stafford County)

Mr. Jason Kamras (Richmond City)

Equality Virginia is a 501(c)(3) organization working to build a fully inclusive Commonwealth by educating, empowering, and mobilizing Virginians to ensure all LGBTQ+ people are free to live, love, learn, and work.

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FOR IMMEDIATE RELEASE

Civil Fraud Complaint Alleges Unnecessary Procedures Performed on Patients with End Stage Renal Disease Were Potentially Harmful

The United States filed a civil complaint yesterday in federal court in Brooklyn against Fresenius Vascular Care, Inc. (“Fresenius”) alleging that the company performed unnecessary procedures on dialysis patients at nine centers across New York City, Long Island and Westchester, and billed the procedures to Medicare, Medicaid, the Federal Health Benefits Program and TRICARE.  The complaint seeks damages and penalties under the False Claims Act.

The filing was announced by Breon Peace, United States Attorney for the Eastern District of New York, and Scott J. Lampert, Special Agent-in-Charge, U.S. Department of Health and Human Services, Office of Inspector General’s Office of Investigations (HHS-OIG).

“The conduct alleged in this case is egregious, as Fresenius not only defrauded federal healthcare programs but also subjected particularly vulnerable people to medically unnecessary procedures,” stated United States Attorney Peace.  “This Office will hold medical providers accountable for practices that needlessly expose patients to harm for financial gain at taxpayer expense.”

Mr. Peace also expressed his thanks to the Federal Bureau of Investigation, New York Field Office, the United States Office of Personnel Management, and the United States Department of Defense for their assistance with the investigation.

“The alleged conduct by Fresenius unnecessarily compromised patient care and undermined the financial integrity of federal health care programs,” stated HHS-OIG Special Agent-in-Charge Lampert.  “Along with our law enforcement partners, HHS-OIG is committed to protecting beneficiaries and taxpayers from such abusive practices.”

As alleged in the complaint, from about January 1, 2012 through June 30, 2018, Fresenius routinely performed certain procedures on patients with End Stage Renal Disease (ESRD) who were receiving dialysis, without sufficient clinical indication that the patients needed the procedures.  These interventions included fistulagrams, which are radiological procedures in which dye is injected into the patient’s vein or artery to visualize the port and surrounding blood vessels, and angioplasties, in which wires and balloons are inserted into veins or arteries that have narrowed to restore the patient’s blood flow.  Fresenius knowingly subjected ESRD patients—who included elderly, disadvantaged minority, and low-income individuals—to these procedures to increase its revenues.

The government filed its complaint in an ongoing action commenced pursuant to the qui tam provisions of the False Claims Act, United States ex rel. Pepe and Sherman v. Fresenius Medical Holdings, Inc., et al., No. 14-CV-3505 (ERK).  The case is being handled by Assistant U.S. Attorneys Jolie Apicella and Anjna Kapoor, and Special Assistant U.S. Attorney Mary Ellen Buntin of the Office’s Civil Division.

Defendants operated vascular access centers at the following locations during the relevant period:

  • American Access Care of Bellmore (now “American Access Care Nassau County”), 250 Pettit Avenue, Suite 2, Bellmore, NY 11710
  • American Access Care Brooklyn, 577 Prospect Avenue Lower Level, Brooklyn, NY 11215
  • American Access Care of New York (now “American Access Care Manhattan”), 403 E. 91st Street, Floor 2, New York, NY 10128
  • American Access Care Queens, 176-60 Union Turnpike #130, Suite 130, Flushing, NY 11366
  • American Access Care Suffolk County, 32 Central Avenue, Hauppauge, NY 11788
  • American Access Care Bronx, 1200 Waters Place N. Lobby, Suite M 115, Bronx, NY 10461
  • Saqib Chaudhry, MD – Flushing, 176-60 Union Turnpike Utopia Center, Suite 145, Flushing, NY 11366
  • Saqib Chaudhry, MD – Roslyn, 1044 Northern Boulevard, Suite 302, Roslyn, NY 11676 (no longer operating)
  • Verrazano Vascular Associates at Access Care Physicians, 2025 Richmond Avenue, Suite 1LL, Staten Island, NY 10314

Press Contact: John Marzulli, Danielle Blustein Hass – United States Attorney’s Office – (718) 254-6323

FOR IMMEDIATE RELEASE

WASHINGTON, D.C. – In recognition of their outstanding contribution to antitrust scholarship, the authors listed below have been selected as recipients of the 20th Annual Jerry S. Cohen Memorial Fund Writing Award:

  • Colleen Cunningham, Assistant Professor of Strategy and Entrepreneurship, London Business School;
  • Florian Ederer, Associate Professor of Economics, Yale School of Management;
  • Song Ma, Assistant Professor of Finance, Yale School of Management.

The award will be presented during the gala luncheon at the American Antitrust Institute’s 23rd Annual Policy Conference on June 15, 2022 at the National Press Club in Washington, D.C.

The authors will be honored for their article, “Killer Acquisitions,” 129 J. Pol. Econ. 649 (2021). The article argues that incumbent firms may acquire innovative targets solely to discontinue the target’s innovation projects and preempt future competition. The authors develop an economic model illustrating this phenomenon and then empirically quantify its prevalence using pharmaceutical industry data. They find that at least 5% of the acquisitions in their sample qualify as “killer acquisitions” and that those acquisitions tend to cluster right below the thresholds for antitrust scrutiny.

The three winners will share a $13,500 prize and will each receive an inscribed original artwork created by Lori Milstein.

In addition, this year’s award selection committee has conferred seven category awards, as follows:

This year’s award selection committee consisted of Zachary Caplan, Shareholder at Berger Montague; Warren Grimes, Professor of Law at Southwestern Law School; John Kirkwood, Professor of Law at Seattle University School of Law; Roger Noll, Professor Emeritus of Economics at Stanford University; Leslie Marx, Professor of Economics at Duke Fuqua School of Business; Robert Lande, Professor of Law at University of Baltimore School of Law; Daniel A. Small, Partner at Cohen Milstein; and Daniel H. Silverman, Partner at Cohen Milstein. (Professor Marx recused herself from deliberations relating to her own article.)

About the Award:

The Jerry S. Cohen Memorial Fund Writing Award was created through a trust established in memory of Jerry S. Cohen, an outstanding trial lawyer and antitrust scholar. The award is administered by the law firm he founded, Cohen Milstein Sellers & Toll PLLC.

The award honors the best antitrust writing published during the prior year that is consistent with the values that animated Jerry S. Cohen’s professional life:  a genuine concern for economic justice, the dispersal of economic power, effective limitations upon economic power, and the vigorous enforcement of the antitrust laws.

For more information please contact:

Kate Fitzgerald / 202.408.4600 / kfitzgerald@cohenmilstein.com

FOR IMMEDIATE RELEASE

PRESS CONTACT

Tammy Mangan, Director of Marketing

press@cohenmilstein.com

STERLING JEWELERS AND COHEN MILSTEIN ANNOUNCE AGREEMENT  IN CLASS ACTION LITIGATION

Joint Statement

Sterling Jewelers and Cohen Milstein Sellers & Toll are pleased to announce an agreement which, subject to approval by the Arbitrator, will resolve a legal dispute initiated in 2008 that involved allegations of gender discrimination in pay and promotions practices on behalf of a class consisting of approximately 68,000 members. Under the agreement, Sterling Jewelers, a subsidiary of Signet Jewelers, agrees to pay $175 million, with payments to class members totaling approximately $125 million and the remainder to class counsel for attorneys’ fees and costs.

“For the past four years, we’ve been successfully transforming Signet’s business model and culture. I want to thank our dedicated team members for helping to create our welcoming and inclusive environment where everyone is invited to be their authentic self. We believe prioritizing diversity, equity and inclusion grows high-functioning teams and fosters a culture of appreciation and development,” said Gina Drosos, CEO of Signet Jewelers.  “This settlement is an important step in bringing closure to a nearly 15-year-old case.  We look forward to continuing our focus on diversity as an important business strategy for Signet, and propelling the innovation, growth, and opportunity that allows our team and company to shine.”

“On behalf of our legal team, we applaud the courage of our clients in the pursuit of this case of singular importance to protecting the rights of women in the workplace.  This settlement provides for significant monetary relief for our clients and ensures that the practices that gave rise to this case will not recur.  And we applaud Sterling Jewelers for undertaking important and meaningful changes to its workplace policies, which have moved it forward as a leader in gender equality,” said Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, lead class counsel.

As part of the company’s transformation in recent years, Signet has made diversity, equity, and inclusion an integral part of its business strategy. Investing in team members to help unleash their full potential has been, and continues to be, key. This includes structuring development programs around Signet’s Leadership Traits to guide store team members who are interested in promotion to manager-level positions. In addition, Signet has discontinued the pay and promotions practices at issue in the lawsuit. Signet also will continue to offer its mentorship programs and leadership training for women, and its robust system for reporting and investigating workplace complaints.  Today, Signet has a highly engaged team and is proud to be a Great Place to Work-Certified™ company, and for the last four consecutive years, listed on the Bloomberg Gender-Equality Index.

More information on Signet’s commitment to diversity, equity, and inclusion is outlined in its recently released 2022 Corporate Citizenship & Sustainability Report. That report also includes an overview of the opportunities for team members to engage in personal and professional learning and development programs, business resource groups and more.

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About Cohen Milstein Sellers & Toll PLLC

Cohen Milstein Sellers & Toll PLLC is a premier U.S. plaintiffs’ law firm, handling high-profile and precedent-setting litigation. With over 100 attorneys across the country, Cohen Milstein has offices in Washington, DC, Chicago, IL, Denver, CO, New York, NY, Palm Beach Gardens, FL, Philadelphia, PA, and Raleigh, NC.

Class Counsel also includes:

BOSTON, MASSACHUSETTS – The United States and the Commonwealth of Massachusetts (collectively, “the Government”) have reached a settlement (the “Settlement”) of approximately $4.7 million with the Steward Health Care System LLC (“Steward”).  This settlement arose as a consequence of the Government’s investigation of allegations contained in a False Claims Act complaint (“the Complaint”) filed by three relators. Steward is the largest, private, for-profit healthcare network in the country and owns and operates multiple hospitals in Massachusetts and other states.

The whistleblowers, including Stephen M. Zappala, MD, and Olivia Lanna, MD MA, filed their lawsuit on behalf of the Government in the U.S. District Court for the District of Massachusetts in 2018. They were represented by Jeanne Markey and Gary Azorsky of Cohen Milstein Sellers & Toll PLLC based in Washington D.C. and Lisa Arrowood and Sarah Sousa of Arrowood LLP based in Boston, MA.

The whistleblowers alleged, among other things, that Steward had both provided payments to specialists, such as urologists, for services which were not performed, and rented space from providers in order to induce patient referrals to its Accountable Care Organization.  Under the terms of the Settlement, neither the federal nor state government takes any position as to the violations of the False Claims Act alleged in the Complaint, and as part of the resolution of this matter the Complaint is being voluntarily dismissed.

As part of the Settlement, Steward admits and accepts responsibility for three categories of conduct which it voluntarily disclosed to the Government. First, Steward disclosed to the Government that it had “failed to charge the proper rent” on leases it had with approximately 50 physicians, physician organizations and non-physician organizations resulting in rent payments below fair market value. It thereby may have violated the anti-kickback statute or the Stark Law prohibiting physician self-referrals. Second, Steward disclosed to the Government that the Steward Good Samaritan Medical Center, Inc., (“GSMC”) entered into a compensation arrangement with Dr. Bahige Asaker for services that Steward cannot confirm were performed and thereby may have violated the anti-kickback statute. Third, Steward disclosed to the Government that GSMC entered into arrangements with two urology centers, Brockton Urology Clinic and Adult & Pediatric Urology Center, P.C. for specified services that were not provided.

“Our healthcare system is meant to function as a dedicated servant to its patients and employees alike,” said Gary Azorsky, partner at Cohen Milstein Sellers & Toll. “Settlements such as this one serve to facilitate this important goal.”

The Settlement provides that Steward will pay the Government $4.7 million. After receipt of payment, the Government shall pay a relator’s award of approximately $725 thousand dollars to be split among the three whistleblowers. Also under the terms of the Settlement, GSMC and the Office of the Inspector General for the Department of Health and Human Services (OIG-HHS) shall enter into a Corporate Integrity Agreement.

“My role as a physician is to uphold the integrity of the healthcare system and provide an environment that is committed to the health of our patients. This settlement will forge a brighter path for healthcare,” said Olivia Lanna, MD MA, one of the three whistleblowers in the case.

Cohen Milstein’s Whistleblower/False Claims Act practice has decades of experience successfully pursuing whistleblower cases under the federal and state false claims act statutes in the healthcare, pharmaceutical, and defense contractor industries, and in other industries that transact business with the government, as well as cases arising under the S.E.C. and I.R.S. whistleblower programs.

In 2016, Cohen Milstein represented one of two whistleblowers in the United States et al. ex rel. Lauren Kieff, v. Wyeth, which resulted in one of the largest qui tam settlements in U.S. history – Wyeth agreed to pay $784.6 million to the U.S. government and the over 35 intervening states.

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About Cohen Milstein

Cohen Milstein Sellers & Toll PLLC is recognized as one of the premier law firms in the country handling major, complex plaintiff-side litigation. With more than 90 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., and Philadelphia, Pa.  For additional information, call 267-479-5700.

About Arrowood

Arrowood LLP is a nationally-recognized law firm based in Boston, Massachusetts. Our attorneys are among the most elite and highly respected trial lawyers in the state. We regularly – and successfully – litigate against the largest and best known law firms in the country. Regardless of the practice area, Arrowood LLP provides our clients with the flexibility and efficiency that only a boutique firm can offer.

FOR IMMEDIATE RELEASE

On April 18, 2022, the United States partially intervened in a whistleblower lawsuit brought by Cohen Milstein Sellers & Toll, PLLC on behalf of our clients, Dr. John Pepe and Dr. Richard Sherman, against Fresenius Medical Care North America (“FMCNA”) and one of its business units, Azura Vascular Care (“Azura”), and several related entities. FMCNA is one of the two largest dialysis providers in the United States, operating over 2,500 dialysis units nationwide and treating over 200,000 patients annually. Azura operates more than 60 vascular care facilities across the country.

This lawsuit is brought under the federal False Claims Act and alleges that the defendants have for years performed repeated, unnecessary vascular procedures on end stage renal disease (“ESRD”) patients receiving hemodialysis treatments and have fraudulently charged Medicare, Medicaid and other government health care programs for these procedures. Medicare, the government health care program for the elderly, covers treatment of ESRD patients regardless of their age, spending well over $50 billion annually on their care.

The case is captioned U.S. et al., ex rel. Pepe and Sherman v. Fresenius SE & Co. KGaA et al., Civil Action No. 14-cv-3505, and is pending in the U.S. District Court for the Eastern District of New York. The case remained “under seal,” meaning that under Court order it was non-public, until the Court lifted the seal on May 9, 2022. The federal government is expected to file its own complaint in intervention in July 2022. Eighteen states are included in the lawsuit and have an opportunity to join it in the future as well.

The whistleblowers are highly trained, board-certified nephrologists with decades of experience successfully caring for ESRD patients who receive hemodialysis treatments several times weekly to remove toxins from their blood when their kidneys can no longer do so.

In their complaint, the whistleblowers allege that the defendants have engaged in a fraudulent scheme to receive government payments for unnecessary surgical procedures and testing. ESRD patients typically require a surgically-created access to their vascular system so that adequate hemodialysis can take place and thereby cleanse the blood as healthy kidneys otherwise would. The patient’s dialysis unit is charged with responsibility for monitoring that vascular access regularly and for making a referral to a vascular access facility for possible surgical intervention in the event that clinical evidence indicates that there exists a narrowing (or a “stenosis”) in one or more of the vessels used during hemodialysis that impairs the ability of hemodialysis to occur.

The complaint alleges that for many years, once a nephrologist has initially referred a patient with evidence of a clinically significant stenosis to an Azura facility, and the patient’s vascular access has been treated there, Azura then continues scheduling periodic follow-up visits every 2 to 4 months indefinitely. Almost every time these follow-up visits occur, Azura performs an angiogram on the patient (an X-ray using a chemical dye injected into the patient’s vessels), followed by an invasive surgical procedure called an angioplasty. These procedures are performed without evidence of problems in administering dialysis and without a referral by the patient’s nephrologist.  Thus, the defendants have no reasonable basis for performing these medically unnecessary procedures and they are not reimbursable by the government health care programs. Nevertheless, defendants have submitted, or caused to be submitted, these fraudulent claims for payment and the government has, in good faith, paid them.

As Dr. Pepe, who has successfully treated hundreds of ESRD patients during a distinguished medical career, explains, “Dialysis patients are highly vulnerable and must trust their doctors to look out for their best interests. We believe that Fresenius has acted for financial gain at the expense of the patient and the U.S. taxpayer.”

This partial intervention is the culmination of the federal government’s comprehensive, detailed, and sophisticated investigation of Dr. Pepe’s and Dr. Sherman’s allegations. The government team is led by Jolie Apicella, Chief of the Health Care Fraud Unit for the U.S. Attorney’s Office, Eastern District of New York. The two physicians are represented by Jeanne A. Markey and Gary L. Azorsky, co-chairs of Cohen Milstein’s whistleblower practice, based in Philadelphia, Pennsylvania, and their colleague in the practice group, Raymond M. Sarola. Dr. Pepe is also represented by Vincent F. Pitta of Pitta LLP, located in New York City.

About Cohen Milstein Sellers & Toll PLLC

Cohen Milstein Sellers & Toll PLLC is recognized as one of the premier law firms in the country, handling complex plaintiff-side litigation. With more than 100 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, IL, New York, NY, Palm Beach Gardens, FL, Philadelphia, PA, and Raleigh, NC.

Claims about company’s lax data security, which led to breach that impacted over 133 million guest records, moving forward on behalf of nearly 45 million consumers as a certified class  

GREENBELT, Md.– A federal judge in Maryland has granted class certification in a data breach impacting over 133 million American consumers against hotel chain Marriott (NASDAQ: MAR) and its data security vendor Accenture (NYSE: ACN), clearing the way for the litigation to move forward. The Court will allow the case to proceed as a class action on behalf of the first group of claimants the parties selected – an initial group of approximately 45 million consumers in California, Connecticut, Florida, Georgia, Maryland, and New York. The lawsuit stems from a data breach Marriott discovered in 2018 after it acquired Starwood, in which, by its own admission, 133.7 million guest records of Starwood customers were compromised. Marriott acknowledged in 2019 that the records included approximately 5.25 million unencrypted passport numbers and 20.3 million encrypted passport numbers, among other sensitive personal information regarding hotel stays.

In granting class certification, Judge Paul Grimm of the U.S. District Court for the Southern District of Maryland issued a 70-plus page opinion that made clear he was certifying the case for potential trial, rather than for a pending settlement (as occurs in most other data breach cases). The opinion allows the plaintiffs to seek damages related to overpayment for hotel rooms, as well as statutory and nominal damages. The Court also found that consumers might be able to recover damages for the inherent value of their personal information stolen during the breach based upon Marriott’s own valuation of that same data.

DiCello Levitt Gutzler partner Amy Keller, Hausfeld partner James Pizzirusso, and Cohen Milstein Sellers & Toll partner Andrew N. Friedman are Co-Lead Plaintiffs’ counsel in the case. They issued the following joint statement:

“After three years of hard-fought litigation, the Court issued a well-reasoned opinion which provides a path forward to hold Marriott accountable for its egregious, four-year data breach. While many companies do the right thing and work to help their customers after a data breach, Marriott and Accenture chose to deny responsibility, vigorously attempting to convince the Court that they cannot be held liable to anyone impacted by the breach. We look forward to presenting our evidence to a jury.

The valuation of personal information is still fairly new territory for many Courts, and this is the first case to reach class certification on the issue. While the Court precluded our expert on this point, it also recognized that we might have the ability to introduce the value that Marriott itself derived from its customers’ data at trial as a component of damages the class sustained. The Court also accepted our experts’ damages methodology that Marriott and Starwood guests overpaid when making hotel reservations because of substandard security. Finally, the Court found that we could seek to recover nominal damages and statutory damages in some states. Marriott and Accenture are facing significant liability here, and we look forward to holding them to their legal and moral responsibilities.”

Filed in January 2018, the lawsuit alleges that Starwood, and later Marriott, took more than four years to discover the long-running data breach. Marriott became the world’s largest hotel chain when it acquired Starwood that same year.

Beginning in 2014 or earlier, and continuing through November 2018, hackers exploited vulnerabilities in Starwood’s network to access the guest reservation system and steal customer data. Marriott discovered the breach on September 8, 2018 but failed to publicly disclose it until nearly three months later, on November 30, 2018, when it admitted that there had been unauthorized access to the Starwood guest reservation database. This database contained personal customer information, including names, mailing addresses, phone numbers, email addresses, passport numbers, Starwood Preferred Guest account information, date of birth, gender, arrival and departure information, reservation dates, and communication preferences. For some customers, the information also included payment card numbers and payment card expiration dates.

The case is In re: Marriott International, Inc. Customer Data Security Breach Litigation, MDL No. 19-md-2879 in the U.S. District Court for the Southern District of Maryland. See the Court’s opinion.

About DiCello Levitt Gutzler

At DiCello Levitt Gutzler, we’re dedicated to achieving justice for our clients through class action, business-to-business, public client, whistleblower, personal injury, and mass tort litigation. Our lawyers are highly respected for their ability to litigate and win cases – whether by trial, settlement, or otherwise—for people who have suffered harm, global corporations that have sustained significant economic losses, and public clients seeking to protect their citizens’ rights and interests. Every day, we put our reputations—and our capital—on the line for our clients.

About Hausfeld

Hausfeld is a leading litigation law firm with offices in Boston, New York, Philadelphia, San Francisco, and Washington, D.C., as well as in the UK and continental Europe. In the last decade, Hausfeld has won landmark trials, negotiated complex settlements, and recovered billions of dollars for clients both in and out of court. Hausfeld lawyers consistently apply forward-thinking ideas and creative solutions to the most vexing global legal challenges faced by clients. As a result, the firm’s litigators have developed numerous innovative legal theories that have expanded the quality and availability of legal recourse for claimants around the globe.

About Cohen Milstein Sellers & Toll PLLC

Cohen Milstein is a premier, nationally renowned plaintiff-side law firm. With over 100 attorneys in six offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa. and Raleigh, N.C., the firm engages in groundbreaking and high-stakes class action litigation concerning social and economic justice. Through the courts, we have helped our clients hold bad-actors accountable, while establishing legal precedent that may have a lasting and positive impact for future generations. These efforts have led us to be recognized by the industry as: “The most effective law firm in the United States for lawsuits with a strong social and political component” by Inside Counsel Magazine and a “Class-Action Powerhouse” by Forbes.

Contacts

Media:
Jason Milch
Baretz+Brunelle
jmilch@baretzbrunelle.com
312.379.9406

FOR IMMEDIATE RELEASE

Children as Young as 10 Years Old Forced to do Labor in Service of Scientology Instead of Receiving Basic Schooling; Isolated from Parents and Endured Verbal Abuse for Minor or Fabricated Transgressions

Plaintiffs Were Compelled to Join the Crew on Scientology’s “Freewinds” Ship, Forced to Work Under Extreme Conditions With No Way Out

TAMPA, FLORIDA – Three individuals who were raised in Scientology and forced to work in its service from childhood today filed a groundbreaking lawsuit against Scientology’s leader, David Miscavige, and five Scientology-affiliated corporations, alleging violation of the Trafficking Victims Protection Reauthorization Act (TVPRA). The filing details the horrific mistreatment the plaintiffs endured under the control of Scientology, including forced labor, verbal and physical abuse, intimidation and coercion at Scientology’s primary hub of activity in Clearwater, Florida and for more than a decade on board Scientology’s cruise vessel, the Freewinds.

The plaintiffs allege that, beginning in childhood, they were required to commit to a lifetime of service to Scientology, enduring regular verbal abuse, crowded living conditions and sleep deprivation. Children were repeatedly told that those who attempted to leave Scientology could suffer awful fates, including death.

Beginning as young as 10, the plaintiffs were forced to work in Scientology’s Cadet Org and Sea Org, providing unpaid and extremely low-paid labor, including landscaping, food service and janitorial work. The plaintiffs allege that Scientology employs numerous psychologically devastating tactics to achieve coercive control over members, including lengthy interrogation sessions in which individuals who have been abused are compelled to take full blame for those abuses and agree to make amends to their abusers.

“For years, Scientology has exploited defenseless children and groomed them for a lifetime of servitude. Our clients were subjected to systematic indoctrination and manipulation that normalizes extremely abusive treatment. Throughout their formative years and into adulthood, they were forced to perform labor under unimaginable conditions,” said Neil L. Glazer, an attorney for the plaintiffs and shareholder at the law firm of Kohn, Swift & Graf, P.C. “Their lives have been forever altered by this mistreatment.”

“Growing up in Scientology, being separated from my family and subjected to severe verbal and physical abuse has scarred me in ways that I am still working through and uncovering.  Sometimes it feels like it will never end.  All the while, Scientology continues to abuse and exploit its members, including young children, and does so with virtually unchecked power,” said plaintiff Gawain Baxter. “To this day, there are completely defenseless minors being mistreated by Scientology leadership. Just as I was, they are isolated from family and have no way to protect themselves. Scientology must be held accountable for the human rights abuses and trauma it has inflicted without a shred of remorse.”

Plaintiff Gawain Baxter was required at age six to sign a contract pledging to serve Scientology, and by extension David Miscavige, for one billion years. Beginning at age 10, he alleges he was forced to attend expensive indoctrination sessions, the costs of which he was continually told were recorded as a mounting financial debt he would have to repay if he ever left the Sea Org.

As a teenager, Gawain Baxter was allegedly transported from Clearwater to Curacao and compelled to board the Freewinds, where his identification documents were immediately confiscated. There, he was forced to provide manual labor with few breaks and little sleep. Tasks were often incredibly dangerous, such as when he was ordered to squeeze inside fuel tanks to clean them from the inside, without a respirator to protect him from the fumes. When the Freewinds underwent extensive renovations, he worked more than 18 hours per day and was exposed to blue asbestos and concrete dust. He was not provided any protective equipment and soon became ill, coughing up blood.

“Scientology cannot be allowed to continue exploiting the labor of its members and inflicting emotional and physical abuse without facing justice,” said Ted Leopold, an attorney for the plaintiffs at Cohen Milstein Sellers & Toll PLLC. “Our hope is that this lawsuit will assist the plaintiffs in holding Miscavige and Scientology accountable for this egregious mistreatment.”

The second Plaintiff, Laura Baxter, grew up in Scientology in Germany. At age seven, her mother signed her up to take Scientology courses. By 15, she worked as a staff member for Scientology in Stuttgart, which required her to undergo frequent “auditing” and “security checks.” Her mother eventually signed over guardianship to a senior Scientology officer, after which she was transported to the Freewinds. Her identifying documents were also confiscated and she was forced to do labor and endure punishment for minor or fabricated transgressions.

In 2004, a prominent Scientologist celebrated their birthday aboard the Freewinds. At the celebration, the plaintiff was allegedly falsely accused of monopolizing their attention and, as punishment, was confined to the hot engine room for three days and was only allowed to leave for a few minutes at a time for meals and a few hours of sleep in her room. During her time on the Freewinds she continued to endure further abuse, such as being forced to confess to alleged crimes against Scientology, having her meager pay withheld, being confined and under constant surveillance.

Gawain and Laura Baxter met aboard the Freewinds and ultimately married. Eager to escape the Sea Org, they made the decision to become pregnant, which would give them the opportunity to leave due to a policy change following unfavorable news coverage of the Sea Org’s forced abortion policy. When Laura became pregnant, the two were offered a choice to terminate the pregnancy or leave the Sea Org. When they declined to terminate the pregnancy, they were isolated from the ship’s staff, put under full-time surveillance and required to undergo ethics handlings and security checks as punishment. Gawain was also interrogated and berated for not forcing Laura to terminate her pregnancy. After weeks of punishments and isolation when it became clear that they were not going to comply, Gawain and Laura were permitted to leave the ship.

To this day, they are traumatized as a result of what they endured since childhood. They regularly receive intimidating phone calls from Scientologists as a reminder that they continue to be monitored.

The third plaintiff, Valeska Paris, was subjected to Scientology indoctrination beginning when she was just four years old. During this training, which continued throughout her childhood and adolescence, she was regularly interrogated by adults who asked graphic questions about sexual acts for hours at a time. When she was six years old, Valeska’s parents deposited her with the Cadet Org in England, where she was provided minimal schooling and was forced to work for hours every day.

When she was 14 years old, Valeska was pressured into going to work in the Sea Org at Scientology’s “Flag Base” in Clearwater, Florida. There, among other things, she was punished for reporting having been sexually assaulted by a senior Scientology officer. After several years of mistreatment, Scientology’s leader, David Miscavige ordered her to be put to work on the Freewinds, where she toiled under extreme conditions for many years.

“Because of the horrors I experienced at the hands of Scientology from childhood and throughout my adolescence, I still have nightmares. Scientology is a system that is designed to perpetuate fear, and I continue to struggle with the trauma. No person – child or adult – should have to go through the daily abuse and manipulation I faced. Though bringing this lawsuit is a great personal risk, I could not stand by while countless children continue to be trained for a lifetime of slavery and abuse,” said plaintiff Valeska Paris.

TVPRA is a 2008 law that strengthened the federal trafficking laws established in the Trafficking Victims Protection Act (TVPA) of 2000.

The lawsuit also names Church of Scientology International Religious Technology Center (RTC), International Association of Scientologists Administrations (IASA), Church of Scientology Flag Service Organization, Inc., and Church of Scientology Flag Ship Service Organization, Inc. as defendants.

The lawsuit has been filed on behalf of the three plaintiffs, who are represented by Neil L. Glazer of Kohn, Swift & Graf, P.C., Ted Leopold of national plaintiff firm Cohen Milstein Sellers & Toll,  Gregory Hansel of Preti Flaherty, and Warren A. Zimmerman.

Media Contact: Berlin Rosen / cohenmilstein@berlinrosen.com

About Cohen Milstein Sellers & Toll PLLC

Cohen Milstein Sellers & Toll PLLC is recognized as one of the premier law firms in the country, handling complex plaintiff-side litigation. With more than 100 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa. and Raleigh, N.C. For additional information, call 202.408.4600.