Under what is known as the Moench presumption, an ERISA plan fiduciary's decision to remain invested in employer stock in an Employee Stock Ownership Plan (ESOP) is insulated from legal challenge unless the participant proves that a prudent fiduciary would have made a different investment decision. The Sixth Circuit today reverses dismissal of such a case, where the ESOP - of General Motors stock - cratered as GM went into bankruptcy. Importantly for the future of such cases, the Sixth Circuit rejected the rulings of several other circuits and holds that the particiant need not allege the Moench presumption in a complaint.
UPDATE: Auditor Wage & Hour Litigation Against Big Four Accounting Firms
This blog has recently discussed developments in a variety of wage-and-hour misclassification cases involving Audit Associates at Big Four accounting firms. There have been two more recent developments, both relating to one particular accounting firm's refusal to disclose information (in a case in which Outten & Golden serves as co-counsel). In back-to-back orders, a federal judge in New York ordered preservation of electronic data and disclosure of documents previously filed under seal.
Lactation and Nursing Is a Civil Rights Issue
A federal district court in Houston, Texas held in order dated February 9, 2012 that an employer did not discriminate against a woman who alleged she was fired for asking for a private location to pump breast milk after she returned from maternity leave. This decision, though, is hardly the last word on the civil rights of nursing mothers.
Continue reading Lactation and Nursing Is a Civil Rights Issue
FINRA Fines Merrill Lynch $1 Million for Pursuing Claims Against Employees in Court
The Financial Industry Regulatory Authority (FINRA) announced on January 25, 2012 that it fined brokerage house Merrill Lynch, Pierce, Fenner & Smith $1 million for requiring employees to resolve disputes relating to "retention bonuses" in New York state courts. The FINRA rules require its member firms and their employees to arbitrate such disputes in FINRA arbitration.
New Filing by Outten & Golden LLP's Sexual Harassment Practice Group
Outten & Golden LLP's Sexual Harassment Practice Group recently filed a lawsuit against NYU and James Stuckey alleging sexual harassment and sexual assault. The complaint alleges that our client, Ms. Bonadio, was subjected to sexual harassment at the hands of her NYU supervisor, James Stuckey. It states that "Bonadio, a director at NYU's School of Continuing and Professional Studies ("SCPS"), was sexually harassed and sexually assaulted by her supervisor, James Stuckey, when he forcibly grabbed her hand and put it on his crotch and erect penis." In addition, "NYU withdrew a promotion that had previously been afforded to her and failed to proceed with a promised raise . . . she was advised that she had no defined position at NYU." The lawsuit seeks to vindicate her rights by seeking damages and the return of her promised promotion and raise. To read the full complaint, please click on the following link
Walden v. Centers for Disease Control, No. 10-11733 (11th Cir. Feb. 7, 2012)
On a day when we can celebrate a major legal victory for marriage rights - the Ninth Circuit's rejection of California's Proposition 8 - a court on the other side of the country quietly issues a complementary decision, holding that a public employer need not accommodate the anti-gay religious beliefs of a benefits counselor who declares her refusal to assist same-sex couples.
In Re American Express Merchants' Litigation, No. 06-1871 (2d Cir. Feb. 1, 2012)
In this long-lived appeal, involving an antitrust tying claim against the American Express Company, the Second Circuit reaffirms its prior holding that an arbitration clause preventing class-action litigation of a medium-dollar claim may be unenforceable if its practical effect is to prevent the plaintiffs from vindicating their statutory rights.
Ross v. RBS Citizens, N.A., No. 10-3848 (7th Cir. Jan. 27, 2012)
The defense bar has been so high on its success in defeating the Wal-Mart Stores v. Dukes class action last spring that its lawyers fanned out across the county, trying to persuade judges everywhere that the era of employment class actions was over. Yet the Seventh Circuit held against this tide, affirming certification of an Illinois state-law Rule 23 class action in a wage-and-hour case, finding that the conditions of Rule 23(c)(1)(B) were met.
Continue reading Ross v. RBS Citizens, N.A., No. 10-3848 (7th Cir. Jan. 27, 2012)
Overtime Class of Duane Reade Assistant Store Managers Conditionally Certified
For the third time, a New York federal district court has conditionally certified a Fair Labor Standards Act (FLSA) collective action on behalf of Duane Reade assistant store managers. On January 27, 2012, the Court issued an order in Jacob v. Duane Reade Inc., 10 Civ. 160 (S.D.N.Y. Jan. 27, 2012) that allows FLSA notice to issue to all assistant store managers who worked at Duane Reade between January 7, 2009 and the January 27, 2012.
Judge Wood Denies Second Motion Seeking Arbitration of Class and Collective Action Wage and Hour Claims
In a recent decision, Judge Wood distinguishes Supreme Court precedent to find an arbitration agreement that did not provide for class arbitration invalid under Second Circuit precedent because it foreclosed the exercise of statutory rights. Reaffirming her initial decision, Judge Wood determined defendant's reliance on the intervening decision of AT&T Mobility LLC v. Concepcion ("Concepcion") in seeking reconsideration was misplaced.
