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“Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed ‘bathroom bill,’ requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates,” writes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.

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.

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.

The ABA Journal reports that attorneys for former Skadden, Arps, Slate, Meagher & Flom partner Greg Craig say he did not circulate a report put together by the law firm and involving former Trump campaign chair Paul Manafort.

Reporter Stephanie Francis Ward explains: “The report was written by Skadden attorneys about the 2011 trial of Yulia Tymoshenko, a former prime minister of Ukraine who was found guilty of abusing her office. Working as a lobbyist, Manafort solicited the report on behalf of Viktor Yanukovych, Ukraine’s pro-Russian president and a rival to Tymoshenko. The plan was to use the report to defend her trial.”

The Washington Post reports that Skadden was paid $4.6 million, a fact Manafort did not reveal, while Ukrainian officials said they paid $12,000 for the report.

And CNN reports that the U.S. Attorney’s Office for the Southern District of New York is also looking into whether Craig failed to register as a foreign agent as required by the Foreign Agents Registration Act.

Read the ABA 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.

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.

Attacks on judicial independence are becoming more frequent and more partisan, according to a Governing report.

Reporter Alan Greenblatt explains, that “while ‘threats of this nature have been going on for years,’ says William Raftery of the National Center for State Courts, articles of impeachment are now being filed more often and for more reasons. Over the past decade or so, judges have become targets of criticism not only from politicians but cable talk-show hosts. In the past, grounds for impeachment have typically been treason, high crimes or malfeasance. That’s changing. These days, lawmakers’ partisan disapproval of rulings appears to be a strong motivator for ousting judges.”

Read the Governing report.

A federal judge in Seattle has ordered the law firms of Baker Donelson and Corr Cronin to pay $500 each for trying to use an apparent misunderstanding as a litigation “weapon,” reports the ABA Journal.

The judge said the law firms had filed a frivolous motion for partial summary judgment that claimed their opponent, software maker Medstreaming, missed a discovery deadline by responding to a request for admissions by email.

Baker Donelson and Corr Cronin had claimed that a request for admissions that the defendant’s software performed improperly was automatically deemed admitted because the response was improperly served via email. Those “admissions,” they claimed, entitled the plaintiffs to a ruling on their breach of contract claims.

The judge said the plaintiffs’ lawyers had tried “to use as a weapon in this litigation whatever misunderstanding occurred regarding how discovery requests and/or responses would be exchanged.”

Read the ABA Journal article.

A biotechnology billionaire faces charges from the Securities and Exchange Commission of being part of pump-and-dump schemes that netted $27 million and left retail investors holding the bag, reports MedCity News.

In a lawsuit filed in federal court in New York, the SEC alleged OPKO Health chairman and CEO Phillip Frost took part in three pump-and-dump schemes between 2013 and 2018.

Reporter Alaric Dearment explains that the complaint alleges that Frost was involved in schemes to promote the stock of some companies on the crowd-sourced investment content site Seeking Alpha, on which articles would appear promoting their shares and touting Frost’s involvement in the companies. After the stock prices were pumped up, the defendants would sell it off, the SEC alleges.

Read the MedCity article.