Category: Appellate & Supreme Court

BG Secures Key Federal Appellate Victory in Pay-to-Pay Litigation

Bailey & Glasser, LLP’s Pay-to-Pay team—comprised of partner James Kauffman, Consumer Litigation Practice Group Leader Patricia Kipnis, and attorneys Denali Hedrick and Allison Bruff—secured a significant appellate victory for mortgage holders. Last week, the U.S. Court of Appeals for the Eleventh Circuit upheld a ruling against mortgage servicer Ocwen Loan Servicing/PHH Mortgage Corporation, finding that the company violated the Fair Debt Collection Practices Act (FDCPA) by charging consumers optional fees of $7.50 to $12 for making expedited mortgage payments online or by phone.

This case resulted from a strategic, long-term approach by the litigation team to address split authority in district courts in the Eleventh Circuit and nationwide regarding whether the FDCPA prohibits loan servicers from collecting “pay-to-pay” or “convenience” fees for certain payment methods. The U.S. District Court for the Southern District of Florida ruled that the FDCPA does prohibit such fees and awarded judgment to plaintiffs Sheryl Glover and Cathy Booze.

When Ocwen/PHH appealed to the Eleventh Circuit, the Bailey Glasser team, alongside co-counsel from Tycko & Zavareei, leveraged prior success on this issue in the Fourth Circuit and received support from the Consumer Financial Protection Bureau as amicus curiae. During oral arguments in November, Ocwen faced tough questioning from the appellate panel. In its ruling issued on February 4, 2025, the court held: “Ocwen violated the FDCPA because it is a ‘debt collector’ who charged an ‘amount’ that was not ‘expressly authorized by the agreement creating the debt or permitted by law.’”

This decision strengthens Bailey Glasser’s ongoing efforts to hold financial institutions accountable for unlawful payment processing fees and further bolsters the team’s momentum in Pay-to-Pay litigation, providing key supplemental authority in multiple ongoing cases.

To read the full Eleventh Circuit opinion visit here.

#BaileyGlasser #PaytoPay #ConvenienceFees #ConsumerLitigation #ConsumerProtection #Appellate

BG Wins Appeal in Dismissal of Negligence Lawsuit for Client APCo

A Bailey Glasser litigation team won an appeal before the Intermediate Court of Appeals of West Virginia on behalf of our client Appalachian Power Company (“APCo”). The team in this case included partner and lead counsel Brian Swiger, partner and Civil Defense Practice Group Leader Rebecca Pomeroy, and lawyers Christopher Smith and Savanna Jones.

In this case, our client was accused of playing a role related to a motorcycle accident that occurred on Route 75 in West Virginia. After discovery concluded, our client won summary judgment because we proved, and the lower trial court correctly held, that APCo could not be liable for failing to maintain a driveway that it did not build, use, or own.

Indeed, all parties had admitted on appeal, that they had no evidence that APCo owned, maintained, used, or otherwise conducted any activities on the access road.

The Intermediate Court of Appeals of West Virginia agreed and found that the petitioners’ negligence claims failed as a matter of law.

Learn more about this matter and the BG Team, visit here.

#Energylaw #litigation #WestVirginia #Appeals #CivilDefense #BaileyGlasser

BG Team Wins Appeal in Lawsuit Against Lloyd’s of London

A BG litigation team won an appeal before the Commonwealth of Kentucky Court of Appeals on behalf of our client, Mega Highwall Mining, against insurer Lloyd’s of London. The team was comprised of partner and Practice Area Leader Nicholas Johnson; partners Joshua Hammack and Travis Prince; and lawyers Savanna Jones and Christopher Smith.

In 2021, the firm’s client, Mega Highwall Mining, LLC, procured an expensive property insurance policy to cover its highwall mining equipment. In April 2021, the mountain fell in on the mining equipment worth millions of dollars, forever entombing it in the earth. Mega made a claim to Lloyd’s, but Lloyd’s denied the claim, alleging that Mega had abandoned the mining equipment. After the conclusion of discovery, both sides moved for summary judgment. The trial court granted summary judgment to Lloyd’s of London, finding that the abandonment exclusion applied to the physical loss and thus precluded coverage on Mega Highwall’s claim. We then appealed.

On appeal, the appeals court agreed with Mega’s position. The appeals court held: “Although we agree that there is only one reasonable interpretation, we disagree with the court’s reading of the exclusion and its conclusion that coverage was precluded. While abandonment can be a cause of a loss that would be excluded under the Lloyd’s policy, it was not the cause of the loss herein. Because the property was not abandoned, regardless of the fact that it was not returned to the surface, the abandonment exclusion does not apply.”

We look forward to a speedy resolution of the case upon remand.

To learn more about Bailey Glasser’s commercial litigation practice, please visit this link to our Commercial & Environmental Litigation Practice page.

To learn more about our appellate work, please visit our Appellate & Supreme Court Practice page.

Pictures of lawyers on appellate team

Bailey Glasser’s Appellate Win Against NBA Gains National Media Attention

Bailey Glasser’s recent appellate victory in Salazar v. NBA is garnering national media attention, with new coverage by Bloomberg Law and Reuters. Partners Michael Murphy and Joshua Hammack achieved a landmark win in the Second Circuit, defending the right of consumers to control information about their video-watching history under the federal Video Privacy Protection Act (VPPA).

“They’ve got two choices—they either don’t use the pixel, or they get consent from their consumer,” partner Michael Murphy told Bloomberg Law regarding the importance of the recent Second Circuit decision requiring clear consent in data-handling practices.

At the heart of the case, Mr. Salazar, a subscriber to the NBA’s newsletter, alleged the NBA unlawfully shared his video-watching history with Facebook. A lower court dismissed Salazar’s VPPA claim based on its view that he didn’t meet the statutory definition of a “consumer.” The Second Circuit, however, vacated this decision, holding the VPPA protects anyone who subscribes to any “goods or services” from a video provider—even to non-audiovisual goods or services, like the online newsletters at issue in this case. The Second Circuit’s interpretation, which is the first in the country from a federal appellate court, sets a powerful precedent for future cases.

To Reuters, Joshua Hammack, lead appellate counsel who argued the appeal, described the decision’s impact. After noting that businesses profiting from targeted-advertising regimes that violate consumers’ privacy interests might have preferred a different outcome, Hammack said: “The Second Circuit confirmed Congress said what it meant and meant what it said. The decision is a slam dunk for consumers hoping to keep their personal information private.”

The case is Salazar v. National Basketball Association, Case number 23-1147, in the U.S. Court of Appeals for the Second Circuit. To learn more and to read the Court’s full decision, visit here.

To learn more about Josh Hammack, visit here.

To learn more about Michael Murphy, visit here.

BG Team Secures Slam Dunk Victory at Second Circuit Against NBA

BG partners Joshua Hammack and Michael Murphy secured an important and precedent-setting appellate victory for consumer privacy yesterday. The law at issue—the federal Video Privacy Protection Act—was intended to prevent certain companies from disclosing consumers’ video-watching preferences. And the law broadly protects “consumers,” which it defines to include “any renter[s], purchaser[s], or subscriber[s] of goods or services from a video tape service provider.” But, in August 2023, a district court in the Southern District of New York dismissed Mr. Salazar’s complaint alleging the NBA violated the VPPA by sharing his video-watching history with Facebook without his consent. It reasoned he was not a “consumer” because he subscribed only to the NBA’s online newsletter, and not to any of its audio-visual goods or services.

The Second Circuit flatly rejected this analysis. It held: “The phrase ‘goods or services’ in the VPPA is not cabined to audiovisual goods or services, but also reaches the NBA’s online newsletter.” Indeed, the term “consumer” “should be understood to encompass a renter, purchaser, or subscriber of any of the provider’s ‘goods or services’—audiovisual or not.” Because Mr. Salazar had alleged he subscribed to the newsletter, then, he was a statutory consumer entitled to the VPPA’s privacy protections.

Joshua Hammack, lead appellate counsel who argued the appeal, had this to say: “We’re pleased the Second Circuit smacked the NBA’s arguments off the backboard. The opinion boils down to this: The VPPA says what it says, and the district court’s attempt to rewrite it was improper.” Michael Murphy added: “Not much more to say than it’s a slam dunk for consumer privacy.”

Bailey Glasser’s litigators have been fighting to protect consumers in privacy law cases like this one. Our lawyers are nationally recognized for their work, including Mr. Murphy’s Band One Chambers & Partners ranking for his D.C. litigation practice, and Mr. Hammack has been recognized by Lawdragon as a 500 X – The Next Generation for his commercial litigation and appellate work, and as a Benchmark Litigation, U.S. 2024 Benchmark 40 & Under Litigator in Washington, D.C.

For more about the win, please visit this link.

Kentucky’s SB 257 Ruled Unconstitutional in Interstate Commerce Victory

In the latest update in the years-long fight on behalf of Foresight Coal Sales, Bailey Glasser has secured another win for interstate commerce and constitutional law.

On September 24, 2024, the district court granted Foresight Coal Sales summary judgment, declaring Kentucky’s SB 257 unconstitutional and enjoining the Public Service Commission’s commissioners from enforcing the law. This ruling marks a significant victory in Foresight’s long-standing legal battle against a law the district court agreed discriminated against interstate commerce.

This triumph follows years of dedicated litigation led by Bailey Glasser attorneys Joshua Hammack, Nick Johnson, and Chris Smith, who have championed Foresight’s case from the outset. In February 2023, the U.S. Court of Appeals for the Sixth Circuit ruled that Foresight’s constitutional claim was likely to succeed, delivering a key victory with a memorable opinion that Kentucky couldn’t “have its cake and eat it, too.”

Kentucky filed a petition for certiorari, arguing the Supreme Court of the United States should take up the case and reverse the Sixth Circuit’s decision. After the Supreme Court ordered Foresight to respond to that petition, Bailey Glasser’s team employed a creative and impactful argument, relying extensively on George Orwell’s Animal Farm to show the flaws in Kentucky’s case. In October 2023, the Supreme Court denied Kentucky’s petition, leaving the Sixth Circuit’s ruling intact and allowing the case to return to the district court.

This team of Bailey Glasser attorneys has been at the forefront of this fight, leading every phase of litigation—from the original complaint to discovery, appellate review, and now summary judgment. This latest decision is a testament to the team’s relentless pursuit of justice and constitutional fairness for Foresight. And this decision has far-reaching consequences for the coal industry, and for anyone selling across state lines, because it ensures states cannot extend or deny favorable treatment based on state of origin or similar “proxies” (e.g., state political decisions) that would threaten the unified national market.

Learn more about this case here:.

And for more information on our Commercial Litigation practice, please visit here.

Bailey Glasser partners Lori Bullock, Joshua Hammack, Elliott McGraw, and Nick Warden were named to Benchmark Litigation’s U.S. 2024 Benchmark 40 & Under Litigators List.

Pictures of recipients Bullock, Hammack, McGraw, and Warden
Bailey Glasser partners Lori Bullock, Joshua Hammack, Elliott McGraw, and Nick Warden were named to Benchmark Litigation’s U.S. 2024 Benchmark 40 & Under Litigators List.

Lori Bullock is the managing partner of BG’s Des Moines, Iowa office and handles cases across several litigation areas, including labor and employment, sexual harassment, disability discrimination, education law, and civil rights. Lori has won trailblazing Title IX settlements for student-athletes at colleges and universities across the U.S. for violating the federal civil rights law prohibiting sex discrimination at educational institutions receiving federal funds, including an appeal against Michigan State University that was appealed up to the Supreme Court of the United States. Lori was also a member of the BG team that won a $5 million arbitration award against My Pillow CEO Mike Lindell for his 2020 election fraud claims. Lori has been named to the 2024 Lawdragon 500 X – The Next Generation list, as well as Best Lawyers in America, Litigation – Labor and Employment.

Joshua Hammack handles complex commercial litigation from inception through appeal, focusing on constitutional issues, statutory interpretation, intellectual property, product safety, insurance, contracts, and Title IX discrimination, among others. Just this year, Joshua argued a pair of appeals in the Second and Sixth Circuits concerning an issue of first impression—what it means to be a “consumer” under the Video Privacy Protection Act. Joshua also successfully argued a Title IX appeal before the Ninth Circuit, where the court vacated orders denying class certification for female student-athletes at Fresno State. Additionally, he secured an important appellate reversal last year in the Sixth Circuit, which agreed a challenged Kentucky law likely violated the Dormant Commerce Clause. Joshua was previously named to the 2024 Lawdragon 500 X – The Next Generation list, and is also a Best Lawyers Ones to Watch, Appellate Practice and Commercial Litigation.

Elliott McGraw’s practice focuses on complex commercial disputes where she represents institutional investors and asset managers in contract and tort-based claims arising from financial fraud, accounting malpractice, and corporate malfeasance. Elliott also advises organizational and individual clients navigating government or internal investigations and has represented clients in front of Congressional committees, including the 2019 Impeachment Inquiry into then-President Donald Trump. Elliott was a member of the BG trial team that recently won a $40 million jury verdict in a Texas federal court in a fraud and breach of fiduciary duty case. She has also been recognized as a Best Lawyers Ones to Watch, in Privacy and Data Security Law.

Nick Warden, a partner in our Boise, Idaho office, focuses his practice in commercial litigation, with a particular focus on complex business litigation in the agricultural, chemical, and finance industries including accounting and auditor malpractice. Nick has represented clients in appeals before the Idaho and Ninth Circuit appellate courts, as well as state and federal courts in Idaho, Arkansas, California, Colorado, Montana, Massachusetts, Maryland, Indiana, Illinois, and New York. Nick has been recognized as a Best Lawyers Ones to Watch, in Commercial Litigation and Litigation – Labor and Employment.

As set forth by Benchmark Litigation when announcing the awards: “[e]very year, Benchmark Litigation sets out to identify the best and brightest litigators across the US. While it is certainly not an easy task selecting from such a wide array of accomplished young lawyers, we are excited to reveal our list of the top emerging talent in litigation.”

Congratulations to all the lawyers receiving this recognition. To see the full list, please visit this link.

Federal Appeals Court Reinforces Protection for Worker Class Action Rights in ESOP Action

Bailey Glasser’s ERISA litigation team won another victory before the U.S. Court of Appeals for the Second Circuit, which declined to reconsider a May 2024 ruling that an employee stock ownership plan trustee and selling shareholders in a stock sale to the plan can’t compel individual arbitration of a representative action on behalf of the plan accusing them of overcharging the plan, rejecting the trustee’s argument that the panel unfairly displayed “hostility to arbitration.”

Bailey Glasser’s ERISA litigation team won another victory before the U.S. Court of Appeals for the Second Circuit, which declined to reconsider a May 2024 ruling that an employee stock ownership plan trustee and selling shareholders in a stock sale to the plan can’t compel individual arbitration of a representative action on behalf of the plan accusing them of overcharging the plan, rejecting the trustee’s argument that the panel unfairly displayed “hostility to arbitration.”

In an order filed on July 9, the Second Circuit rejected Argent Trust Co.’s petition for panel rehearing or rehearing en banc, doubling down on its divided May 1 opinion that found allowing arbitration would have prevented a plan participant from seeking plan-wide remedies authorized by federal benefits law.

The case involves a proposed class of employees seeking relief under federal ERISA law. This decision addressed one of the most important issues in employee benefits litigation today: whether ERISA plan sponsors can force employees to waive plan-wide relief in favor of individualized arbitration, thereby gutting participants’ ability to enforce the core private right of action ERISA affords. This repeated victory for participant rights follows a victory by BG’s ERISA litigation team on the same issue before the Third Circuit in June 2023.

The Court’s May 2024 opinion backed the Southern District of New York’s November 2021 order denying a motion to compel arbitration of an ESOP participant’s suit alleging mismanagement by Argent, which served as trustee to debt relief company Strategic Financial Solutions’ ESOP, and the selling shareholders and their trusts.

The Bailey Glasser team in this matter is comprised of partner and Practice Group Leader Gregory Porter and partner Ryan Jenny, both in Bailey Glasser’s Washington, D.C. office. Co-counsel in this case is Tillman J. Breckenridge, Peter K. Stris, Rachana A. Pathak, and John Stokes of Stris & Maher LLP.

To learn more about our award-winning ERISA practice – including our 2025 nationwide Chambers & Partners ranking, visit this link: https://www.baileyglasser.com/services-erisa-employee-benefits-and-trust-litigation

The case is Dejesus Cedeno v. Argent Trust Co., docket number 21-2891, U.S. Court of Appeals for the Second Circuit.

For more, read this Law 360 article: https://www.law360.com/articles/1856532?e_id=e710f5b1-e0ec-4910-bc7f-0d1e404a2625&utm_source=engagement-alerts&utm_medium=email&utm_campaign=similar_articles?copied=1

Lori Bullock, Katherine Charonko, and Joshua Hammack Named to 2024 Lawdragon X – The Next Generation List

Bailey Glasser partners Lori A. Bullock, Katherine Charonko, and Joshua I. Hammack have been named to Lawdragon’s 2024 500 X – The Next Generation guide. This recognition acknowledges the achievements of the top 500 lawyers who have vaulted to the forefront of the legal profession. This Lawdragon recognition is prestigious as the 500 lawyers included were selected through a process of “select[ing] members of this guide through our time-honed process of submissions, independent research and vetting with friends and foes.”

Bailey Glasser partners Lori A. Bullock, Katherine Charonko, and Joshua I. Hammack have been named to Lawdragon’s 2024 500 X – The Next Generation guide. This recognition acknowledges the achievements of the top 500 lawyers who have vaulted to the forefront of the legal profession. This Lawdragon recognition is prestigious as the 500 lawyers included were selected through a process of “select[ing] members of this guide through our time-honed process of submissions, independent research and vetting with friends and foes.”

Lori Bullock is an impactful litigator, handling challenging cases across several litigation areas, including Title IX athletics, labor and employment, sexual harassment, disability discrimination, education law, and civil rights, and is the managing partner of BG’s Des Moines, Iowa office. Lori has won ground-breaking Title IX settlements for student-athletes at nine U.S. colleges and universities for violating the federal civil rights law prohibiting sex discrimination at educational institutions receiving federal funds, including appeals to federal circuit court and the Supreme Court included in this submission. She was also part of the team that won the $5 million judgment against “MyPillow’s” Mike Lindell related to false claims made about the 2020 election.

Katherine Charonko is a litigator and head of the firm’s sophisticated and cutting-edge ESI group where she oversees e-discovery in complex disputes involving billions of documents and ensures proper collection, production, and review of electronic data. Kate holds the global Certified e-Discovery Specialist (CEDS) credential, a global recognition that assures clients and co-counsel that our approaches are compliant, efficient, cost-effective, and reduces risk in all phases of e-Discovery. In addition, Kate is a key part of the firm’s multidistrict litigation (MDL) teams, which concentrate largely on automotive and medical device product liability actions. She serves as liaison director of e-Discovery and ESI on several MDL leadership committees nationwide and has worked on landmark MDL matters including some of the largest vehicle defect litigations in history, including the Volkswagen emissions case, and many more. Indeed, Kate was recognized for her product liability work in this year’s Chambers & Partners accolades in the nationwide plaintiffs category, among other recognitions.

Joshua Hammack handles complicated matters from their inception through appeal. He has briefed and argued appeals in state and federal courts across the country for a host of substantive legal areas, including Title IX, the Commerce Clause, contract interpretation, deed construction, statutes of limitation, and the Video Privacy Protection Act. He has briefed multiple issues to the Supreme Court of the United States. In just the last eight months, he has argued before the Second, Sixth, and Ninth Circuits, as well as intermediate appellate courts in West Virginia and New York. Members of the firm regularly gather to watch or listen to his oral arguments, and he also hosts an annual training session on brief writing for lawyers at the firm.

To learn more about the 2024 LDX500 guide, visit: https://www.lawdragon.com/guides/2024-06-28-the-2024-lawdragon-500-x-the-next-generation

Federal Appeals Court Protects Worker Class Action Rights, Rejecting Demands for Individual Arbitrations

Bailey Glasser’s ERISA litigation team won a victory before the U.S. Court of Appeals for the Second Circuit on behalf of a proposed class of employees seeking relief under federal ERISA law.

The Second Circuit ruled May 1st that an employee stock ownership plan (ESOP) trustee and former shareholders of the ESOP’s wholly-owned financial services firm can’t compel individual arbitration of a proposed class action accusing them of overcharging the ESOP for company stock, saying that doing so would prevent a plan participant from seeking plan-wide remedies authorized by federal benefits law. In a 2-1 decision, the court ruled that the lower court was right to deny the motion to compel arbitration by Argent Trust Co., which served as trustee to Strategic Financial Solutions, LLC’s ESOP, and the former shareholders. Plaintiff and BG client, employee Ramon Dejesus Cedeno, filed the Employee Retirement Income Security Act (ERISA) suit in November 2020, alleging the defendants cost the retirement plan and its participants millions when they overcharged the ESOP in a $242 million sale of company stock.

The ruling comes more than a year after oral arguments in which a three-judge federal appeals panel questioned whether individual arbitration could be forced on Dejesus Cedeno given a plan participant’s right to seek relief on behalf of a plan as a whole under ERISA Sections 409(a) and 502(a)(2). The majority decision held that arbitration could not be so compelled, writing: “Because Cedeno’s avenue for relief under ERISA is to seek a plan-wide remedy, and the specific terms of the arbitration agreement seek to prevent Cedeno from doing so, the agreement is unenforceable.” This decision addressed one of the most important issues in employee benefits litigation today: Whether ERISA plan sponsors can force employees to waive plan-wide relief in favor of individualized arbitration, thereby gutting participants’ ability to enforce the core private right of action ERISA affords. This victory for participant rights follows a victory by BG’s ERISA litigation team on the same issue before the Third Circuit in June 2023.

The Bailey Glasser team in this matter is comprised of partner and Practice Group Leader Gregory Porter and partner Ryan Jenny, both in Bailey Glasser’s Washington, D.C. office. Co-counsel in this case is Tillman J. Breckenridge, Peter K. Stris, Rachana A. Pathak, and John Stokes of Stris & Maher LLP.

To learn more about Gregory Porter, visit this link.

To learn more about Ryan Jenny, visit this link.

To learn more about our award-winning ERISA practice, visit here.

To read a Law 360 article about this win, visit this link.

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