A recent case from the United States District Court for the Western District of Pennsylvania highlights how expensive a Fair Labor Standards Act case can be when an employee prevails for unpaid overtime compensation, writes Jay Carr in Vorys, Sater, Seymour and Pease’s Energy & Environmental Law Blog.

The article describes Sammy Mozingo v. Oil States Energy Services L.L.C., in which oil field workers in Texas filed a class action alleging that their employer Oil States had misclassified them as exempt from overtime laws. Most of the employees settled, but eight went to trial, resulting in Oil States paying damages, fees, and costs totaling $3,385,884 for just these eight employees.

Read the article.

If your client is going to contractually commit to using commercially rea­son­able ef­forts to do something — and if your client expects that obligation to require some­thing less than “all reasonable efforts” — then you’ll want to make that expectation clear in the contract itself, advises D.C. Toedt III in the On Contracts Blog.

He discusses a case in which the influential Dela­ware chancery court noted the chasm be­tween the meaning of that term to transactional lawyers versus to courts.

“Seemingly disregarding practitioners’ views, the chancery court continued the Delaware trend —which that court itself started — of treating com­mer­­ci­al­ly rea­sonable efforts as requiring the obligated party to take ‘all rea­son­able steps.’”

Read the article.

Bloomberg Law reports that the U.S. Senate has confirmed Eric Dreiband, a Jones Day attorney who defends companies accused of discrimination, to lead the Justice Department office that enforces anti-bias laws and investigates police civil rights cases.

“Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed ‘bathroom bill,’ requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates,” writes Bloomberg’s Chris Opfer. “He also won a case for R.J. Reynolds Tobacco that made it harder for workers to sue for age discrimination under federal law.”

Read the Bloomberg Law article.

Reuters points to an effort illustrating a rare show of bipartisanship as state politicians rally around the cause of overturning U.S. Supreme Court precedent that protects monopolists from consumer suits.

Alison Frankel writes that “31 state attorneys general from across the political spectrum united in an amicus brief asking the Supreme Court to overturn its 1977 precedent in Illinois Brick v. Illinois, which blocks downstream purchasers from asserting antitrust claims under federal law. The state AGs – including GOP stalwarts from Texas and Florida as well as activist Democratic AGs from New York, California and Massachusetts – argue that the Supreme Court’s Illinois Brick doctrine was ill-advised, judge-made policy that has been repudiated by decades of antitrust litigation under state laws passed in its wake.”

Read the Reuters article.

Plaintiffs’ lawyer John McCraw of Dallas is facing possible disciplinary action because he filed a motion asking two appellate court justices to remove themselves from a case, implying that the pair voted to overturn his clients’ $1 million jury verdict because of donations they’d received from two political action committees.

Dallas Observer reports that the justices not only declined to recuse themselves, they and their fellow justices sent McCraw’s name to the general counsel of the State Bar of Texas for possible disciplinary action for insulting the court.

A three-judge panel of the 5th Court of Appeals had overturned a $1 million award to McCraw’s clients, two women who had sued their apartment owner after an intruder entered through a window and violently assaulted both women.

Reporter Nashwa Bawab writes: “McCraw asked the entire 13-member appeals court to reconsider — minus Justices Craig Stoddart and Molly Francis, two of the three judges who unanimously voted to overturn the verdict. Stoddart and Francis each received $2,000 from the Texans for Lawsuit Reform PAC and the Apartment Association of Greater Dallas PAC a few days apart from each other and less than a month before they were assigned the case.”

Read the Dallas Observer article.

MedCity News reports that one of the nation’s largest dialysis providers will pay $270 million to settle a whistleblower’s allegation that it helped Medicare Advantage insurance plans cheat the government for several years.

Fred Schulte explains:

The settlement by HealthCare Partners Holdings LLC, part of giant dialysis company DaVita Inc., is believed to be the largest to date involving allegations that some Medicare Advantage plans exaggerate how sick their patients are to inflate government payments. DaVita, which is headquartered in El Segundo, Calif., did not admit fault.

Read the MedCity News article.

A recent Ninth Circuit ruling that Uber’s arbitration agreements did not violate the National Labor Relations Act provides a major victory to Uber by requiring each plaintiff to separately arbitrate his or her claims.

Christine M. Fitzgerald, writing in the Jackson Lewis California Workplace Law Blog, explains that plaintiffs filed a putative class action against Uber for failure to remit gratuity paid by customers, and for misclassification of the drivers as independent contractors and failing to pay their business expenses. The O’Connor plaintiffs sought an order declaring Uber’s 2013 arbitration agreements unconscionable.

The panel rejected plaintiffs’ argument that the lead plaintiffs constructively opted out of arbitration on behalf of the entire class.

Read the article.

A dispute over the songwriting credit for the iconic “Stairway to Heaven” took a surprising twist last week when a California appellate court reversed a 2016 copyright victory for Led Zeppelin and ordered a new trial, according to a post on the website of Androvett Legal Media & Marketing. The Ninth Circuit ruling means that the estate of Randy Wolfe (aka Randy California) has a second chance to convince a jury that one of classic rock’s most recognizable guitar riffs was based on work by the largely forgotten 1960s-era performer.

In 2016, a Los Angeles jury took just 15 minutes to find that “Stairway to Heaven” was not substantially similar to “Taurus” written by Wolfe’s band Spirit. The Ninth Circuit judges found that the trial judge had failed to advise jurors that while individual elements of a song may not qualify for copyright protection, a combination of sufficiently original elements may qualify.

Copyright lawyer Amanda Greenspon of Dallas-based Munck Wilson Mandala said there’s no clear legal criteria to use in determining what a “combination of sufficiently original elements” is and courts have reached inconsistent conclusions. She said last week’s decision appears to reflect the sentiment behind the 2015 ruling awarding the estate of Marvin Gaye more than $7 million after a jury found that Robin Thicke and Pharrell Williams had copied portions of Gaye’s “Gotta Give it Up” in their 2013 hit “Blurred Lines.”

“That case has been criticized for allowing the copyright holder to protect a style as opposed to an actual composition,” she said. “That’s not the express precedent from the case which had a number of procedural issues, but it definitely resonates in the decision to remand it back to the trial court and essentially provide jury instructions that certain common elements can be protected under copyright even when they may be standard to a genre.”

Greenspon notes that copyright law offers protections against claims of infringement for certain works in books, plays and films that are common to a genre. “There is no analogous doctrine in music, but we see the same concept play out all the time,” she said. “Songs within a genre of music often share common elements. How musicians handle that is often based on the two songs’ relative commercial success. In some instances, it’s easier to acknowledge credit and not litigate.”

The law firm that spent nine years fighting and winning health care for veterans subjected to government-administered human testing of chemicals including sarin, mustard gas, and LSD was awarded $3.4 million in fees, a small fraction of the value of the hours the firm said it put into the case.

Bloomberg Law reports that Morrison & Foerster LLP accepted a fee award from the U.S. Army that’s $16 million less than the fee the firm could have sought.

“The fee award is the latest and nearly last chapter in the litigation by soldiers subjected to the government’s decades-long human testing program who were seeking recognition and health care above what they could get at the Veterans Administration for injuries they suffered,” writes Bloomberg’s Joyce Cutler.

Read the Bloomberg Law article.

The Ohio law firm owned by disbarred attorney Stan Chesley has agreed to pay $23.5 million to hundreds of the firm’s former clients after a now-four-year battle over money a judge said they are owed, according to The Cincinnati Equirer.

Reporter Kevin Grasha writes that Chesley’s attorneys agreed there was “unjust enrichment” to the firm when it took millions of dollars more in fees than it should have as part of a class-action lawsuit.

Chesley, who was disbarred in Kentucky over his actions, was the sole owner of the firm, Waite Schneider Bayless & Chesley. Legal action against him will continue, said Angela Ford, the attorney who represents the 382 former clients.

Read the Cincinnati Enquirer article.

Vizio has announced a potential $17 million settlement in a recent class action lawsuit, which could result in a pay-out that is as little as a few cents for each of the millions of people claiming the company’s smart TVs collected and shared their private viewing data without their consent, reports the New York Daily News.

A ProPublica 2015 expose alleged Vizio used its smart TVs to spy on an estimated 16 million Vizio TV owners who purchased and connected their televisions to the internet between Feb. 1, 2014 and Feb. 6, 2017, writes reporter Jessica Schladebeck.

“After payment of notice and administration costs and any approved award of attorneys’ fees, costs and service awards, all funds remaining in the settlement fund will be distributed to the class,” according to court documents.

Read the NY Daily News article.

The Orlando Sentinel is reporting that the founder of Tea Party Nation has been disbarred for trying to swindle timeshare owners into thinking they canceled their timeshares.

Tennessee attorney Judson Wheeler Phillips, a senior partner with Nashville-based Castle Law Group and founding member of the conservative Tea Party group, was accused of taking off with the money he earned from the fraudulent transactions, the Tennessee Supreme Court has ruled.

Federal lawsuits were filed against Phillips by Westgate Resorts and Orange Lake Resorts, both based in Orlando, as well as Las Vegas-based Diamond Resorts and Fort Lauderdale-based Berkley Resorts. More than 90 consumer fraud complaints also were filed.

Read the Orlando Sentinel article.

A recent article posted on the website of Haynes and Boone analyzes nationwide trends in the filing and certification of royalty class action cases, which result in much greater exposure to producers than individual royalty owner cases. For example, in the past five years, producers have settled class actions for amounts in excess of $80 million.

“Ninety-six putative class actions filed during the period from 2001 to the present are analyzed in this article. Since Congress enacted the Class Action Fairness Act of 2005 (CAFA), most of these cases were litigated in federal court,” write David Ammons and Mike Stewart.

“These cases deal almost exclusively with alleged underpayment of natural gas royalties (oil royalty litigation rarely arose during the period analyzed).”

Read the article.

The Chicago Tribune tells the story of a former general counsel who had been unemployed and job hunting for three years when he came across a position that seemed promising, but for this part of the ad: “3 to 7 years (no more than 7 years) of relevant legal experience,” it said.

The story of Dale Kleber, who was 58 at the time, illustrates a bigger story of the critical question about whether job applicants can pursue lawsuits at all in such cases, explains reporter Alexia Elejalde-Ruiz.

“The federal Age Discrimination in Employment Act prohibits discrimination against people over 40, but there is dispute about whether Congress intended for the law to protect external job applicants, not just current or former employees, against policies that appear to be neutral but have a disproportionate adverse effect on older people,” she writes.

Kleber’s experience includes a stint as general counsel at Dean Foods and, most recently, as CEO of a dairy products trade group.

Read the Chicago Tribune article.

A federal appeals court Tuesday ruled that Uber can force its drivers into individual arbitration over pay and benefit disputes, voiding an effort by thousands of drivers to join in a class-action suit against the ride-hailing company, according to the Los Angeles Times.

The U.S. 9th Circuit Court of Appeals in San Francisco overturned a lower-court order that had certified the drivers’ class-action effort.

The court’s opinion cited a 5-4 U.S. Supreme Court decision in May that employers could enforce arbitration agreements that require workers to give up the ability to collectively pursue claims that they were shortchanged or treated unfairly.

Read the LA Times article.

In a case stemming from a fatal car accident a dozen years ago, the Florida Supreme Court has backed a jury’s conclusion that GEICO General Insurance Co. acted in “bad faith” in the way it handled a customer’s claim, reports The Daytona Beach News-Journal.

The 4-3 ruling came in a multimillion-dollar case that has been watched by the insurance industry and trial attorneys,” writes reporter Jim Saunders. “The ruling reinstated a bad-faith verdict against GEICO after the 4th District Court of Appeal had overturned the jury’s decision.”

The court’s opinion disputed the appeals court’s conclusion that there was “insufficient” evidence that GEICO had acted in bad faith. It said that the appeals court had not properly applied legal precedents in its decision.

Read the News-Journal article.

A federal courtroom in Miami is now the intersection for a celebrity attorney, two major cybercrimes and a foreign tech firm with an ephemeral South Florida address and entanglement in the Trump-Russia probe, reports the Miami Herald.

The case involves a defamation lawsuit brought by Cyprus-based entrepreneur Aleksej Gubarev against online news outlet Buzzfeed, which published the collection of research memos known as the Trump dossier.

Gubarev also sued former British spy Christopher Steele, a Russia expert who wrote the dossier, in London.

Colorful lawyer Roy Black is representing Buzzfeed in the Miami suit.

Read the Miami Herald article.

Image by Patrick

USA Today reports that a class-action lawsuit was filed Monday against IBM on behalf of three former employees alleging age discrimination.

Reporter Swapna Venugopal Ramaswamy explains: “The lawsuit alleges that the plaintiffs are among thousands of IBM employees to be laid off recently as the result of a shift in IBM’s focus to recruit millennials ‘in order to make the face of IBM younger, while at the same time pushing out older employees.'”

“IBM has discriminated, and continues to discriminate, against its older workers, both by laying them off disproportionately to younger workers and by not hiring them for open positions,” the lawsuit alleges.

The three name plaintiffs are 55, 59 and 67, and have worked for IBM for periods ranging from 15 to 34 years.

Read the USA Today article.

Lawrence J. West and Joshua W. Mermis, co-founders of the Houston-based litigation boutique West Mermis PLLC, have both been named to the 2019 listing of The Best Lawyers in America as well as the 2018 listing of Super Lawyers by Thomson Reuters.

West and Mermis have been recognized for two consecutive years by Best Lawyers for their work in construction litigation.

In addition to this year’s Super Lawyers recognition, West has been named to the Texas Super Lawyers list each year since 2014.

Mermis was first recognized in 2017, after earning appearances on the companion Texas Rising Stars list from 2010-2011 and again from 2014-2016.

Read about the awards.

Image by Chris Potter

A federal appeals court has upheld a federal judge’s decision to deny as “grossly excessive” a request for more than $900,000 in attorney fees based on a $100,000 punitive award, reports the ABA Journal.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals, found that, when a request under a fee-shifting statute is “outrageously excessive,” a judge may deny the award altogether if the statute gives the judge discretion in awarding fees.

Journal reporter Debra Cassens Weiss explains:

Lawyers seeking the fees had admittedly tasked one lawyer with recreating time records that included vague descriptions and excessive hours, the appeals court said. Sixty-four hours were billed for “transcripts/clips” and 562 hours were billed to prepare for a week-long trial. There were only five witnesses for both sides.

Read the ABA Journal article.