Class Actions

Weil secured a complete defense jury verdict for C&S Wholesale Grocers following nine days of trial in April 2018 in an antitrust class action in Minnesota federal court. The jury’s verdict erased several hundred million dollars sought in treble damages, plus attorneys’ fees, and brought nine years of litigation to a close. Plaintiffs alleged that New England-based C&S and Supervalu, another leading wholesaler based in the Midwest, entered into a conspiracy to allocate the New England and Midwest territories between themselves for a period of five years, resulting in inflated grocery prices. The other defendant settled before trial. Weil partners David Lender and Eric Hochstadt, who led the trial team, were recognized as The American Lawyer’s “Litigators of the Week,” in which the publication characterized the rare, high-stakes case as “An Antitrust Unicorn – With $800M on the Line.” The team also won Global Competition Review’s “Litigators of the Week” accolades for its role in securing this win. In 2020, following oral argument, the Eighth Circuit affirmed the verdict dismissing all claims, and the U.S. Supreme Court subsequently denied plaintiffs’ motion for a writ of certiorari.

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. In September 2015, Weil won the dismissal with prejudice of all claims in the lead case of the MDL, and over the course of the following year, Weil secured the dismissal of 13 related cases. Plaintiffs in five of the dismissed cases appealed these decisions to the Eleventh Circuit, which in September 2017 issued a 2-1 panel decision, over a vigorous dissent, reversing the trial court rulings and remanding for further proceedings. After an exceedingly rare grant of an en banc petition prepared by Weil, in March 2019 the Eleventh Circuit affirmed the district court’s dismissal with prejudice in an en banc review of the consolidated appeal. Weil likewise won another consolidated appeal before the Eleventh Circuit in March 2020 encompassing complaints originally filed in Utah, Indiana, and Mississippi. In addition, Weil won a significant victory in May 2017 for Farmers and its affiliates when a Florida federal court granted the dismissal of all claims in a related nationwide putative RICO class action.

Weil successfully represented a group of local television stations as plaintiffs in a putative class action lawsuit in the U.S. District Court for the Southern District of New York against the Society of European Stage Authors and Composers (SESAC) performance rights organization, challenging its licensing practices under the federal antitrust laws. Plaintiffs sought treble damages and injunctive relief on a proposed classwide basis. The named plaintiffs survived a motion to dismiss and a motion for summary judgment, thereby ensuring a jury trial, and recently entered into a very favorable settlement that provides substantial industry-wide relief. SESAC will be bound through 2035 by some of the core conduct restrictions that constrain ASCAP and BMI, the other two primary performance rights organizations, in their consent decrees with the Antitrust Division of the U.S. Department of Justice. The settlement also provides monetary relief — SESAC paid $58.5 million into a settlement fund, including attorneys’ fees and costs, which the Court remarked was a “very substantial hit to SESAC.”

Weil serves as lead counsel for Michael Foods, Inc. in an ongoing federal multidistrict antitrust class action in Pennsylvania federal court asserting numerous unfair practices under state law, as well as a nationwide class of egg products purchasers. We successfully argued and defeated several class certification and summary judgment motions on behalf of all Defendants and negotiated favorable settlements of discrete portions of the litigation.

Weil represents Pilgrim’s Pride Corporation in In re Broiler Chicken Antitrust Litigation, which is one of the largest antitrust cases in the country. The case involves more than 70 complaints filed by three purported nationwide classes and 160 Direct Action Plaintiffs. Plaintiffs allege that 19 poultry producers and a benchmarking organization conspired to restrict the supply of broiler chickens in violation of federal antitrust laws and state antitrust, consumer protection, RICO and unjust enrichment laws and collectively seek damages likely to exceed $10 billion. After several years of litigation, Weil secured highly favorable settlements with the three purported classes.

Weil also represents Pilgrim’s Pride Corporation in In re Broiler Chicken Grower Litigation, which consolidates class action complaints filed on behalf of purported classes of broiler growers. Plaintiffs in these cases allege that PPC and other poultry integrators illegally conspired to suppress prices paid to broiler growers nationwide in violation of the Sherman Act and the Packers and Stockyards Act. The Judicial Panel on Multidistrict Litigation consolidated a series of “copycat” class action complaints from California, Colorado, and Kansas into MDL proceedings in Oklahoma. Discovery is ongoing, and the current case management order contemplates a close of fact discovery in February 2022.

Weil also represents Pilgrim’s Pride Corporation in Jien v. Perdue Farms, Inc., a wage fixing and “no poach” case filed in the U.S. District Court for the District of Maryland on August 30, 2019. Plaintiffs seek to represent a nationwide class of employees at poultry processing plants from 2009 to the present. After two years of litigation, Weil obtained a highly favorable icebreaker settlement with the purported class.

Weil won a dismissal on the pleadings for GE Money Bank (GEMB) before the U.S. District Court for the Eastern District of Missouri in a purported class action seeking statutory damages of $1,000 per alleged violation. Plaintiff claimed that a “prescreened” offer for a line of credit was not a “firm offer of credit” under the FRCA because it allegedly did not disclose certain terms of the offer. Weil successfully argued that the FCRA does not require disclosure of the terms at issue, and demonstrated that the client’s offer letter disclosed more than 20 key terms of the offer and had actual value to the consumer.

Weil also successfully represented GEMB in a purported nationwide class in the U.S. District Court for the Northern District of Illinois alleging violations of the Fair Housing Act and the ECOA. Plaintiffs claimed 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 also sought to hold GEMB liable for subprime loans originated by another GE subsidiary, that originated billions of dollars in subprime loans and was one of the top ten subprime lenders in the country.

Weil obtained the dismissal of a breakthrough Section 113 case for MovieTickets.com. Plaintiff argued that an email confirmation sent to customers following their on-line purchase of movie tickets from MovieTickets.com violated the Fair and Accurate Transactions Act (FACT) by including a credit card expiration date. The District Court’s decision to dismiss was based on its conclusion that the FACT Act simply did not reach Internet communications such as those sent by MovieTickets.com. As the first decision granting a substantive final judgment holding that Section 113 does not apply to Internet communications, it received significant coverage in industry journals. The decision was not appealed.

Weil serves as a primary outside defense counsel for one of the world’s leading technology companies in class actions targeting its high-tech products. Recently, Weil prevailed on motions to dismiss in two separate consumer class action complaints in California federal court, one alleging a defect in its top-selling device and the other regarding a Wi‐Fi feature in its operating system, which was subsequently upheld on appeal before the Ninth Circuit.

Weil served as national counsel for Sanofi in a putative consumer class action relating to the company’s global recall of its epinephrine injection product, Auvi-Q. Plaintiffs alleged claims for violations of the Illinois Consumer Fraud Act and unjust enrichment with respect to the recall. In July 2016, an Illinois federal judge granted Weil’s motion to dismiss all claims.

Weil successfully represented Showtime Networks Inc. in multi-district class action litigation consolidated in the C.D. Cal. relating to the 2015 Manny Pacquiao-Floyd Mayweather boxing match, which was billed as the “Fight of the Century.” Weil secured a strategic early dismissal on behalf of SNI during the MDL consolidation process, avoiding costly additional phases of litigation. Plaintiffs in these cases, including 13 class actions involving Showtime, alleged that Showtime, along with other media networks, the boxers, and their respective promotion companies, deceptively and fraudulently promoted the match as one between two healthy fighters, while allegedly knowing that one of the fighters was injured prior to the start of the fight.

Weil subsequently defended Showtime in a suite of putative class actions arising out of the latest “Fight of The Century” between Floyd Mayweather and UFC star Conor McGregor. Plaintiffs in these cases claim they purchased the pay-per-view match and planned to view it through Showtime’s digital application, but were unable to do so due to Showtime’s alleged insufficient bandwidth and server systems. Weil secured a critical early victory in one of the component cases when a New York federal judge granted Showtime’s motion to compel arbitration of plaintiff’s claims, precluding him from pursuing his claims on behalf of a class. In the subsequent weeks, Weil succeeded in extracting Showtime from every other case in which it was named as a defendant.

Weil secured the dismissal of a high-profile consumer class action in which Plaintiffs alleged that Starbucks stores throughout Manhattan – the Company’s largest market in the U.S. – have for many years been permeated with a toxic pesticide called Dichlorvos, contradicting their marketing claims that their products are prepared in a safe and natural environment. The plaintiffs sought to represent all individuals who purchased a product in the last three years from a Starbucks location in Manhattan that was using the pesticide.

Weil represented Walgreens Boots Alliance, Inc., operator of the nationwide drugstore chain, in several high-profile consumer class actions filed against it and Theranos, Inc. The complaints allege that Theranos’ finger-stick blood tests, which used its proprietary “Edison” blood-testing device, were inaccurate, placing tens of thousands of customers at risk for incorrect medical diagnosis and/or testing. Walgreens and Theranos moved to dismiss plaintiffs’ complaint. In June 2017, U.S. District Judge H. Russel Holland dismissed the majority of plaintiffs’ claims, allowing plaintiffs to amend some, but not all, of the claims. Among the claims dismissed with prejudice were claims all claims asserting that Walgreens is jointly and severally liable with Theranos. Plaintiffs sought reconsideration of this ruling, which the court denied. Subsequently, Weil secured a settlement for Walgreens from Theranos that mitigated Walgreens’ exposure.

Weil represented Elite Model Management, one of the world’s most renowned modeling agencies, in a putative collective/class action brought under the 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. 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 also represented Elite in a massive putative class action that targeted virtually the entire New York modeling industry by challenging the classification of models as independent contractors. The case is the first of its kind in New York State, and has the potential to alter the landscape of the entire modeling industry. In May 2017, Weil obtained a huge victory (which no other defendant achieved) when the court granted Elite’s motion to dismiss almost in its entirety, leaving only a single individual claim against Elite asserted by one named plaintiff. Leveraging the favorable court ruling, Weil deployed a unique strategy involving a “notice of tender” under the CPLR to force plaintiffs’ counsel to accept the offer and dismiss the entire class case against Elite with prejudice. Elite was the only defendant to obtain a complete dismissal from the case.

Weil represents Sterling Jewelers in Jock v. Sterling, a class arbitration widely recognized as the largest private Title VII class action in the country (as well as a corresponding gender bias EEOC suit that we successfully resolved). To date, Weil has secured a number of victories before the trial court and the Second Circuit implicating class arbitration issues.

Weil represented Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. (together, “Forest”), in a 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.

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 was subsequently retained to defend another California wage and hour class action, Christie. This case involved putative 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. Plaintiff based her pay card claims on her allegation that TMI employees incurred fees when attempting to access their wages via the pay card program that TMI offered to its employees as an alternative to direct deposit. After removing the case to the U.S. District Court for the Central District of California, Weil obtained a rare dismissal of the entire lawsuit with prejudice. Plaintiff then filed an appeal with the Ninth Circuit, but before TMI was required to file its response, the parties reached a settlement whereby the matter was resolved on an individual basis for a nominal sum. Weil is one of only a small handful of firms in the country that has obtained an early dismissal on the pleadings of such pay card claims.

Following the Christie matter, Weil was again retained by TMI in another putative California wage and hour class action in the Northern District of California involving nearly 4,000 potential class members (McMahon). Plaintiff’s counsel, a leading national wage and hour class action attorney, asserted class claims for failure to provide rest breaks, failure to timely pay all final wages, violation of California’s unfair competition law, and civil penalties under the Private Attorneys General Act (PAGA), seeking to recover substantial eight-figure damages. After an attempted mediation, Weil won a key dispositive motion where the court rejected plaintiff’s attempt to expand the case significantly, and then secured during a deposition of the lead plaintiff numerous fatal admissions to her class claims, which laid the groundwork for a very favorable settlement. This case also involved a ground breaking ruling on how PAGA settlement funds should be allocated to the class versus the state of California.

Weil also won an early and complete dismissal on a motion to dismiss of another California-based putative class action brought against TMI involving claims under the FCRA and the California corollary background and credit check statutes.

For many years, Weil has served as lead counsel to Farmers Insurance Exchange and its affiliates in defense of a number of significant class actions. Recent examples include:

• Weil achieved a significant appellate victory for Farmers Insurance Exchange and Mid-Century Insurance Company in the U.S. Court of Appeals for the Tenth Circuit. The court affirmed the dismissal of a class action in which plaintiffs challenged a time limitation in Farmers’ automobile insurance policies.
• Weil successfully represented Farmers Insurance Company in a putative class action alleging that the company and a number of affiliates wrongfully adjusted and reduced claims for medical payment benefits. The court denied plaintiffs’ motion for class certification, finding that individual issues concerning what was “reasonable” predominated throughout the case, and held that the class representatives were atypical and inadequate to represent the proposed class.
• Weil successfully represented Farmers Insurance Exchange in a putative nationwide class action alleging that Farmers Insurance Exchange breached its insurance agreements by using fee review computer software to improperly deny coverage for the class’ reasonable medical expenses. The court dismissed plaintiffs’ complaint, and the Third Circuit later affirmed, and denied plaintiffs’ motion for rehearing or rehearing en banc.

Weil represented Genworth in a purported nationwide class action filed in the U.S. District Court for the Northern District of Ohio related to the optional inflation rider on Genworth long-term care insurance policies. The named plaintiff, the estate of a deceased beneficiary, alleged it was due additional benefits under the beneficiary’s long-term care insurance policy. Weil filed a motion to transfer the action to Connecticut, as well as a motion to dismiss the complaint. Following the filing of these motions, the plaintiff agreed to voluntarily dismiss the complaint.

Weil obtained summary judgment for Genworth in a class action in federal court in New Jersey 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.

In July 2019—two years after winning summary judgment in a predecessor case—Weil achieved another significant victory on behalf of Dometic Corporation in the U.S. District Court for the Southern District of Florida, after U.S. District Court Judge Robert N. Scola denied Plaintiffs’ motion for class certification and dismissed the consumer class action in its entirety.

Dometic is a leading manufacturer of gas absorption refrigerators, which are uniquely suited for use in recreational vehicles. The lawsuit, like its predecessor, alleged that the cooling units in various models of the company’s gas absorption refrigerators purportedly contained a latent defect. Plaintiffs’ motion for class certification proposed ascertaining a class through Dometic’s “sales and warranty registration records,” notifications that were sent in connection with a product recall years ago, and self-identification through affidavits. The court rejected each and every one of these arguments, ruling that plaintiffs’ proposed classes are not ascertainable and therefore cannot be certified under Rule 23. The court specifically noted plaintiffs’ failure to describe how any of their proposed methods would work, contrasting this lack of evidence with the proof put forward by Dometic to the effect that none of these methods would be feasible.

This win follows another important victory that Weil achieved for Dometic in the same court in July 2017, when Judge Scola granted summary judgment and dismissed a putative class action in its entirety.

Weil successfully represented Nortek Global HVAC, LLC, a leading manufacturer of heating, ventilation and air conditioning equipment, in several putative class actions in Florida and Tennessee federal courts alleging that Nortek failed to disclose defects in its air conditioning equipment. Weil obtained the denial of plaintiffs’ motion for class certification in the Florida case, as well as the dismissal of all claims, with prejudice, in the Tennessee case.

Weil successfully represented as lead counsel Procter & Gamble in the high-profile multi-district litigation, In re Denture Cream Products Liability Litigation, in which more than 150 plaintiffs alleged that they were injured through their use of the popular denture cream, Fixodent. In this action, Weil won numerous motions to exclude plaintiffs’ general causation experts, and secured affirmation by the U.S. Court of Appeals for the Eleventh Circuit on two separate occasions. Ultimately, after these victories, P&G moved for summary judgment in approximately six cases in which plaintiffs argued that they were not subject to the district court’s prior Daubert rulings. The district court granted summary judgment in all of these cases, bringing seven years of litigation to a close on October 25, 2016. The Eleventh Circuit dismissed subsequent appeals by five of these six plaintiffs in November 2016 and January 2017.

Weil served as lead counsel in the defense of Toyobo, a major Japanese fiber manufacturer, in class action suits, multiple personal injury suits, as well as claims by multiple state attorneys general, the U.S. Department of Justice, and foreign states relating to the performance of Toyobo’s Zylon fiber in bullet-resistant vests used by thousands of law enforcement agencies worldwide. In connection with class actions, the Weil litigation team aggressively defended Toyobo and positioned it to favorably settle the class claims brought on behalf of individuals, municipalities, and police agencies who wore or paid for the bullet-resistant vests.

Weil served as 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 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.

Weil negotiated a favorable settlement of the shareholder class action, and we subsequently have litigated a number of “opt-out” suits.

For many years, Weil has lead the representation of Archstone in connection with nationwide securities litigation and arbitrations arising from one of the largest REIT deals in history, the 2007 $22 billion acquisition of Archstone-Smith Trust by affiliates of Lehman Brothers and Tishman Speyer Development Corporation. The $4 billion class action was originally filed in 2007 by investors in the REIT, who claimed that the structure of the acquisition diluted their interests and cost them billions of dollars in tax liability and/or inferior securities.

After more than a decade of litigation, Weil won a complete victory in August 2017 in the U.S. District Court for the District of Colorado when the Court granted summary judgment on every count as to each of the more than 20 defendants, including Lehman Brothers, Tishman-Speyer, Equity Residential, the Archstone-Smith REIT and the indemnifying parties. Weil represented all of the defendants. As a result of this decision, the trial that had been scheduled for January 2018 has been vacated, and all counts against all defendants have been dismissed. In December 2018, the Tenth Circuit affirmed the summary judgment decision in a thorough opinion.

Weil represented 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 represented 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.

Weil has represented legacy Willis (pre-dating its 2016 “merger of equals” with Towers Watson) in connection with approximately 15 securities class and individual actions arising out of the heavily publicized, $8 billion Ponzi scheme orchestrated by R. Allen Stanford and his Houston-based Stanford Financial Group. The complaints in these actions, originally filed in various state and federal courts across the country and centralized in the U.S. District Court for the Northern District of Texas by the Judicial Panel on Multi-District Litigation, generally allege that Willis and other defendants aided Stanford’s fraud.

In August 2017, following motion practice, limited discovery, and appellate proceedings before the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court, a Texas federal judge approved a settlement by Willis that favorably resolved the litigation. In 2019, the U.S. Court of Appeals for the Fifth Circuit affirmed the settlement.