Notable Representations, Key Contacts
- Our preeminent class action litigation practice has an impressive record in defending against some of the most complex class actions in the country, including numerous nationwide and multidistrict litigations in some of the largest, bet-the-company class actions to date.
- We have achieved successful results for clients at every phase of the class action litigation process in both trial and appellate courts, in jurisdictions across the country. These successes include obtaining dismissals of class action complaints, defeating class certification, winning summary judgment motions, prevailing at trial or on appeal, and obtaining highly favorable settlements.
- Our Firm also has the capability to handle regulatory investigations that often lead to class action litigations. With regard to these complex legal challenges, we have achieved successful, comprehensive settlements of both the regulatory matters and the related litigations.
- We have litigators throughout the United States and Europe, but rather than being compartmentalized by area or geography, our practices operate as an integrated practice group comprising lawyers with various areas of expertise. This cross-practice and cross-office one-firm approach allows us to undertake a coordinated analysis and readily manage complex class actions by bringing to bear the full breadth and strength of the Firm to address our clients’ needs.
- Our lawyers are thought leaders in the field of class action litigation, publishing a quarterly journal focusing on class action developments, contributing articles to leading reviews and journals, and frequently appearing as speakers and panelists at, among others, national, state and local bar conferences and conventions, continuing legal education courses, and industry meetings.
Key Contacts for Antitrust:Eric Hochstadt and Carrie Mahan
Antitrust Selected Representations
Weil represents the Elite Rodeo Association (ERA), a newly-founded professional rodeo association, and several of its owners who are the best athletes, as plaintiffs in an antitrust class action lawsuit in Texas federal court challenging, as unfair, retaliatory, and illegal, bylaws passed by the dominant sanctioning body in the sport, the Professional Rodeo Cowboys Association (PRCA). Among other anti-competitive restrictions, the new PRCA bylaws prevent ERA rodeo athletes from participating in PRCA-sanctioned events. Additionally, the bylaws prohibit rodeo committees and other contracting parties like facilities and vendors from participating in non-PRCA rodeo events, including ERA events, within 72 hours before or after any PRCA-sanctioned event. Nationwide, PRCA-sanctioned events take place several times per month, year-round, often with multiple events occurring simultaneously, meaning the 72-hour window before and after any PRCA-sanctioned event effectively prevents numerous entities involved in and necessary to the sport of rodeo from participating in an ERA event.
Plaintiffs allege violations of sections 1 and 2 of the Sherman Act for an illegal group boycott and unlawful monopolization, and seek a court order preventing the enforcement of the current PRCA bylaws; the implementation of new anti-competitive bylaws prohibiting any professional rodeo athletes and third parties from participating in both ERA and PRCA events; and retaliation against ERA athletes.
Weil achieved two separate victories as lead counsel on behalf of Providence Equity Partners and THL. Plaintiff-shareholders asserted broad ranging, industry-wide antitrust conspiracy claims against the companies, and other private equity firms, in connection with 17 multi-billion dollar private equity "club" leveraged buyouts of public companies in auction and proprietary sales processes from 2003–2007. Plaintiffs sought injunctive relief on behalf of shareholders in every publicly traded company in the U.S. and treble damages for shareholders who sold their shares to defendants in specific multi-billion dollar club deals. The district court granted both clients individual summary judgment motions and ruled that the evidence failed to show that either firm had any connection to any alleged conspiracy. The defendants remaining in the case later settled for almost $600 million.
Consumer Financial Services
Key Contacts for Consumer Financial Services:John Mastando
Consumer Financial Services Selected Representations
Weil also successfully represented GEMB in a purported nationwide class action alleging violations of the Fair Housing Act and the Equal Credit Opportunity Act based on, among other things, the plaintiffs’ claim that GEMB’s alleged “policy” of allowing mortgage brokers the “discretion” to impose charges in connection with mortgage loan origination led to minority borrowers being charged disproportionately higher interest rates and fees. The plaintiffs, a purported class of minority consumers, filed suit in the U.S. District Court for the Northern District of Illinois. The plaintiffs also sought to hold GEMB liable for subprime loans originated by another GE subsidiary, co-defendant WMC Mortgage, which originated billions of dollars in subprime loans and was one of the top ten subprime lenders in the country.
Weil’s approach to defending consumer class actions is one that has been honed over many years of representing clients in a diverse array of industries in cases that range from large, bet-the-company litigations to smaller statewide class actions. Overall, our approach is to pursue the simultaneous goals of an early advantageous resolution of claims (minimizing litigation risk and cost) while maintaining a trial-ready posture focused on achieving a positive result should a trial on the merits be necessary.
Given the inevitable high stakes of consumer class actions, our initial focus is to explore whether an early resolution of the case is achievable - whether that is through a dismissal on the pleadings, defeating class certification, or prevailing on summary judgment. When our client is open to resolving a matter through a settlement, we explore ways to strategically and creatively devise acceptable settlement parameters in line with the client’s business objectives. We have had considerable success negotiating with class counsel and obtaining court approvals for innovative settlements.
Key Contacts for Consumer Fraud:David Lender
Consumer Fraud Selected Representations
Weil secured a favorable settlement on behalf of ExxonMobil resolving more than 30 putative class actions, consolidated in a multidistrict litigation in Kansas federal court with billions of dollars at issue, that have been filed against motor fuel retailers (MFRs) throughout warmer regions of the United States. Plaintiffs alleged MFRs failed to adjust the price or size of gasoline to account for the scientific phenomenon of thermal expansion.
Weil also defeated certification of a national class asserting claims in excess of $1 billion on behalf of Exxon Mobil Corporation and co-defendants BP, Citgo Petroleum Corp., Marathon Oil Corp. and Shell Oil Company in a litigation alleging conspiracy among major integrated oil companies to restrict the supply of gasoline and thus increase gas prices.
Employment & Labor
Key Contacts for Employment & Labor:
Employment & Labor Selected Representations
Weil represented Elite Model Management, which is one of the world’s leading modeling agencies, in a putative collective/class action brought under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) alleging that Elite improperly classified its interns as “non-employees.” Initially, the Plaintiff alleged seven causes of action: (1) failure to pay minimum wages as required by the FLSA; (2) failure to pay overtime wages as required by the FLSA; (3) failure to make, keep and preserve accurate records as required by the FLSA; (4) failure to pay minimum wage as required by the NYLL; (5) failure to pay overtime wages as required by the NYLL; (6) failure to pay spread-of-hours pay as required by the NYLL; and (7) failure to make, keep and preserve accurate records as required by the NYLL. Shortly after the Plaintiff filed her complaint, we convinced Plaintiff to drop various causes of action through a strong deficiency letter, thus meaningfully narrowing the scope of the case. We then negotiated a very favorable settlement.
Weil currently represents Elite in a massive putative class action that aims to take on the entire New York modeling industry by challenging the classification of models as independent contractors. The action, which also includes claims for conversion, breach of the covenant of good faith and fair dealing, breach of contract, and unjust enrichment, is brought against some of the leading model management firms in the world. The case is the first of its kind of New York state, and has the potential to alter the landscape of the entire modeling industry.
Weil represented Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. (together, “Forest”), in a massive, ongoing putative gender class and collective action brought on behalf of eleven former sales representatives. Weil successfully narrowed the scope of the case through a motion to dismiss and/or strike, which resulted in the dismissal of several individual claims and a significant narrowing of the putative Title VII class period, and subsequently won the denial of plaintiffs’ motion for equitable tolling of the statute of limitations for potential collective action members’ claims. The matter is a bellwether case due to, among other reasons, the more nuanced gender claims it alleges including family responsibility discrimination, “sex plus” discrimination, “sex stereotyping,” pregnancy-related issues, and compensation disparities based on neutral pay practices.
In 2015, Weil secured a favorable class certification ruling on behalf of Sterling Jewelers in a putative class arbitration brought by female Sterling sales employees claiming sex discrimination in pay and promotions under the Equal Pay Act, Title VII and the Age Discrimination in Employment Act. The putative class, if certified, would have been the largest in the country. The case is being litigated before an arbitrator following extensive litigation up to the U.S. Supreme Court, which denied certiorari on the issue of whether class actions can be compelled to arbitration where the arbitration clause is silent on this point. Weil also represents Sterling in a parallel EEOC litigation.
Weil was retained by Tuesday Morning, Inc. (TMI), a leading national retailer, to replace another prominent law firm in a California state court wage and hour class action following a series of adverse rulings – including the granting of Plaintiffs’ motion for class certification and the denial of Defendant’s subsequent motions for decertification and summary judgment. Among other California wage and hour claims, plaintiffs challenged TMI’s practice of providing “on-duty” meal periods to its California Senior Sales Associates, an issue that is not frequently litigated and on which there is limited and ambiguous legal authority. The certified class included current and former employees of all 87 of TMI’s California-based stores. Following our retention as counsel, we negotiated an extremely favorable resolution for our client by, among other things, developing and marshalling the discovery record in a manner that evinced compliance on TMI’s part with the Division of Labor Standards and Enforcement’s standards for “on duty meal periods” and virtually eliminating any Private Attorneys General Act penalty exposure through a novel but substantiated interpretation of that statute.
Weil also obtained the dismissal, with prejudice, of a separate putative California wage and hour class action filed against TMI, in which plaintiffs asserted class claims for failure to pay wages without discount in violation of California Labor Code Section 212 on behalf of TMI’s entire California workforce based on TMI’s use of payroll debit cards, failure to provide meal and rest periods, and failure to pay hourly wages, as well as other derivative California wage-based claims.
Weil has extensive experience handling high-profile ERISA class actions involving claims for breach of fiduciary duty and improper benefit denials and reductions. We routinely deal with complex issues that require coordination of multiple disciplines – including bankruptcy, tax, labor and foreign law – to align legal solutions with business objectives, and our Firm’s employment lawyers bring a broad expertise in all aspects of employee benefits and executive compensation law.
Our lawyers have achieved significant victories that established important precedents in the nation’s highest court and in cases affecting industry-wide practices, including health care, financial services, and professional services. We have represented numerous clients in crisis situations, including in early, precedent-setting “stock drop” litigations and in claims brought by the Pension Benefit Guaranty Corporation.
Key Contacts for ERISA:Nicholas Pappas
ERISA Selected Representations
Weil defended AIG and certain current and former employees in a putative class action under ERISA on behalf of participants in certain 401(k) plans sponsored by AIG (the Plans) during the period August 7, 2007 through May 1, 2009 and whose participant accounts included shares of AIG’s Stock Fund. Plaintiffs alleged, among other things, that the defendants breached their fiduciary responsibilities to the Plans’ participants and their beneficiaries under ERISA by continuing to offer the AIG Stock Fund as an investment option in the Plans after it allegedly became imprudent to do so; they claim that the purported violations caused hundreds of millions of dollars in damages. The alleged ERISA violations related to, among other things, the defendants’ purported failure to monitor and/or disclose unrealized market valuation losses on AIG Financial Product’s super senior credit default swap portfolio. In light of the U.S. Supreme Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, No. 12-751 (U.S. June 25, 2014), which rejected the presumption of prudence in favor of ERISA fiduciaries that many courts had previously applied, the Court denied defendants’ motion to dismiss without prejudice to renewal of defendants’ motions on other grounds besides the presumption of prudence. The Court’s order required the parties to meet and confer concerning the impact of the Fifth Third Bancorp case and the possibility of settlement. On January 6, 2015, the parties informed the Court that they had accepted a mediator’s proposal to settle the class action for $40 million – a fraction of the more than $300 million value that the plaintiffs ascribed to their claims. The Court approved the class settlement in September 2015.
In 2015, Weil obtained the dismissal with prejudice of all claims against long-time clients UnitedHealth Group and Ingenix in In re Aetna, a multidistrict litigation, pending in New Jersey federal court, in which plaintiffs alleged that Aetna, UnitedHealth, and Ingenix conspired with all major health insurers in the U.S. to manipulate a database that the insurers used to determine health benefit payments for plan members and their physicians. In its opinion, the court accepted many of Weil’s arguments to dismiss plaintiffs’ claims asserted against United and Ingenix, while allowing the case to proceed against Aetna under ERISA. This case is the last in a series class actions filed in various courts against several of the nation’s largest insurers, including UnitedHealth, Aetna, Wellpoint, and Cigna.
We have in-depth knowledge of the insurance and reinsurance business and the complex issues faced in the insurance industry. Our powerful blend of litigation and arbitration experience brings expertise to all sides of complex disputes, including successfully defending clients against private, government, and class action suits and representing plaintiffs in major cases of first impression.
Weil has a long track record of successfully defending insurers against the most complex class actions, including numerous nationwide and multidistrict litigations in jurisdictions across the country. We have achieved successful results for clients at every phase of the class action litigation process in both trial and appellate courts, including obtaining dismissals of class action complaints, defeating class certification, winning summary judgment motions, prevailing at trial or on appeal, and obtaining highly favorable settlements.
Weil also has significant experience in handling internal investigations and in dealing with insurance regulators, including assisting clients with investigations by Congressional committees and state attorneys general.
Key Contacts for Insurance:David Yohai and Salvatore Romanello
Insurance Selected Representations
Weil represents Farmers Insurance and various affiliates in In re Auto Body Shop Antitrust Litigation, a multidistrict litigation (MDL) in Florida federal court comprising dozens of cases across the country brought by auto repair shops, alleging that Farmers and dozens of other insurers artificially suppress reimbursement rates for auto body repairs, in violation of antitrust, RICO, and other statutes. Recently, Weil won the dismissal with prejudice of all claims in the lead case of the MDL. The Court’s decision marks the third consecutive time that Farmers and the other defendants have prevailed on a motion to dismiss for failure to state a claim in the lead case, and suggests that the remaining cases in the MDL may suffer a similar fate. Subsequently, in November 2015, Weil won a significant victory for Farmers Insurance and its affiliates in another component of the MDL, when a Florida federal court granted the dismissal of all claims in a nationwide putative RICO class action relating to reimbursement for auto collision repairs. In the putative RICO class action, plaintiffs – operators of auto collision repair shops in Pennsylvania and North Carolina – allege that Farmers and more than seventy other insurers conspired with each other and other entities to artificially suppress the compensation to repair shops such as plaintiffs’ for auto collision repairs, in violation of the federal RICO statute and state laws.
Weil obtained summary judgment for Genworth in a class action in federal court in New Jersey (following removal pursuant to the Class Action Fairness Act) asserting claims for breach of contract in connection with premium rates for long-term care insurance policies.
Weil also defended two nationwide insurance class actions in New Mexico state court asserting claims for breach of contract, failure to disclose and violations of state unfair and deceptive trade practices statutes.
Product Liability/Mass Torts
High-stakes products litigation typically requires our clients to mount their defense on multiple fronts, which may include class action litigation, multidistrict litigation, individual personal injury actions at the state and federal level, consumer fraud actions, actions by health care providers, False Claims Act litigation, actions by state attorneys general, government investigations, and internal reviews. We have played the role of national coordinating counsel in a variety of such matters and have worked seamlessly with teams of attorneys from other law firms in a cost-efficient manner to bring about successful outcomes for our clients.
We also have particularly expansive experience in defending clients embroiled in parallel criminal and civil actions. The defense strategies employed in these cases can be quite complex, spanning multiple agencies and jurisdictions, where each proceeding may influence the outcome of others. Because many of our attorneys who handle governmental and internal investigations are former senior DOJ officials, federal prosecutors or regulatory officials, they have a keen understanding of the interplay between these simultaneous proceedings, thus enabling our clients to manage their legal risk more effectively.
Key Contacts for Product Liability:Arvin Maskin and Diane Sullivan
Product Liability Selected Representations
Weil represents Nortek Global HVAC LLC (NGHL), a subsidiary of Nortek and a leading manufacturer of heating, ventilation, and air conditioning (HVAC) systems, as lead counsel in defense of putative state and nationwide consumer class actions pending in Florida and Tennessee federal courts. Plaintiffs are purchasers of residential HVAC systems manufactured, distributed and sold by NGHL that allegedly contained defective copper evaporator coils. In 2016, Weil defeated plaintiffs’ motion to certify a class in the Florida case, as well as won a motion to dismiss with prejudice in the Tennessee case.
Weil’s Securities Litigation practice has defended issuers, directors, and corporate executives against virtually every kind of securities claim brought as a class action, including alleged violations of the Securities and Exchange Act of 1934, the Securities Act of 1933, and state law fiduciary duties resulting from, among others, the recent financial crisis, changes in corporate control, allegedly misleading investor communications, stock and/or earnings manipulation, accounting irregularities, insider fraud and misappropriation, market timing, late trading, and stock options dating and granting processes.
The group also has significant experience in class actions and derivative litigation in the context of mergers & acquisitions and other change-of-control transactions brought by shareholder and/or derivative plaintiffs seeking to block and/or recover damages for merger activity.
Key Contacts for Securities Litigation:Joseph Allerhand and John Neuwirth
Securities Selected Representations
Weil is lead counsel nationwide for AIG in shareholder class, derivative and ERISA actions arising out of AIG’s billions of dollars of subprime-related losses and its financial rescue by the U.S. government. Among our notable victories, Weil secured the widely noted dismissal of a shareholder derivative action alleging mismanagement by AIG directors and officers, and more recently obtained the dismissal of all derivative claims asserted in the lawsuit brought by Hank Greenberg’s company Starr International against the United States for more than $50 billion arising out of AIG’s bailout during the financial crisis.
In 2015, Weil negotiated a favorable settlement of the shareholder class action.
Weil represents Sanofi, the global pharmaceutical company, and its former CEO in a consolidated securities fraud class action brought by a putative class of investors in Sanofi American Depositary Shares. Plaintiffs principally alleged that Sanofi’s public disclosures were materially misleading because they failed to disclose that growth in Sanofi’s diabetes franchise was boosted by alleged illicit promotional activities. In January 2016, the U.S. District Court for the Southern District of New York granted the defendants’ motion to dismiss the complaint in its entirety.
Weil also represents Sanofi, its wholly-owned subsidiary Genzyme Corporation and certain of their senior executives in federal securities class and individual actions brought by holders of contingent value rights issued in connection with Sanofi’s 2011 acquisition of Genzyme, relating to the development of Genzyme’s multiple sclerosis drug, Lemtrada™. In a January 2015 Opinion and Order, the U.S. District Court for the Southern District of New York granted the defendants’ motions to dismiss the cases in their entirety and disposed of all federal claims with prejudice. Subsequently, in March 2016, the Second Circuit affirmed the dismissal in a landmark opinion that is the first by the Second Circuit to address the U.S. Supreme Court’s seminal Omnicare decision, which articulated the standard for securities fraud liability for allegedly misleading statements of opinion.
In one of the few securities fraud cases to be tried to judgment, Weil has now successfully defeated a second round of claims against Vivendi by class members, resulting in over $70 million of claims (with interest) being rejected in post-trial proceedings. These claims represent over half the dollar value of the total claims that were filed against Vivendi following a jury trial in 2010. Here, summary judgment was based on testimony and other evidence demonstrating that two leading investment advisors pursued a strategy that entailed valuing each of the company’s assets and gaining a thorough understanding of the company’s debt structure, and that they were aware of the allegedly concealed liquidity risks. The two decisions rejecting these claims – in August 2015 and April 2016 – are significant because, as the court noted, securities fraud class actions in which reliance on share price can be disproved “are as rare as hens’ teeth.”
Weil successfully represented Francesca’s Holdings Corp. – a former portfolio company of CCMP that operates retail clothing stores in the United States – and its directors and officers in a shareholder class action arising out of disclosures concerning future sales and revenue projections, including section 11 claims brought in connection with three offerings during the alleged class period. In March 2015, the U.S. District Court for the Southern District of New York granted the defendants’ motion to dismiss in its entirety. Weil also successfully obtained the dismissal of a related shareholder derivative action brought against the company’s officers and directors.
Weil successfully represented Fairway Group Holdings Corp. in obtaining the dismissal of a stockholder derivative action filed against the directors, officers, and controlling stockholders of the company in New York Supreme Court. Plaintiffs alleged that Fairway issued false and misleading statements in connection with the company’s IPO and other public filings. In 2015, Weil obtained the dismissal of a related securities fraud class action.
Weil Named Class Action “Practice Group of the Year”
Weil litigators “distinguish themselves by the sheer variety of class action categories they tackle…”
Weil again proved its “class action prowess” in 2015 through “strategic use of data” and other “standout legal maneuver[s].”