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May 6, 2021 News

Berger Montague Wins Four Awards in Legal Intelligencer’s 2021 Professional Excellence Awards Series

Berger Montague is proud to announce that the Firm has won four categories in The Legal Intelligencer’s 2021 Professional Excellence Awards series. Chair Emeritus & Of Counsel H. Laddie Montague Jr. won the Intelligencer’s Lifetime Achievement Award, Shareholder Ellen T. Noteware was named an Unsung Hero, and Shareholder Camille Fundora Rodriguez was named a Lawyer on the Fast Track. The entire Firm was named 2021 Class Action Litigation Department of the Year.

Each year, The Legal Intelligencer’s Professional Excellence Awards highlight the great work and achievements across the full breadth of the Pennsylvania legal community. Honorees will be recognized in special editorial sections and at an awards dinner on June 24 at the Crystal Tea Room in Philadelphia.

H. Laddie Montague Jr. Honored With Lifetime Achievement Award

Mr. Montague has had a long, unique, and distinguished legal career. After graduating from the Dickinson School of Law and a stint in the army, he joined David Berger at Cohen, Shapiro, Berger & Cohen in 1964. In 1970, Mr. Berger formed David Berger, P.A., and Mr. Montague was one of four attorneys who joined the new firm. In 1977, David Berger, P.A. became Berger & Montague, P.C. While David Berger is considered one of the founding fathers of the application of the class action device, Mr. Montague is assuredly one of its founding mentors.

Merrill G. Davidoff, a longtime managing shareholder of the Firm who served as Chairman in 2017, says this about Mr. Montague:

“Throughout the nearly 50 years that I have known and admired Laddie, the overriding theme was that we would provide the highest quality of lawyers, and the most ethical lawyering, in the profession. We grew our Firm when it was still very much a profession, not just a business. Thanks to Laddie’s mentoring, that is still our philosophy.”

For his long and successful antitrust career, Mr. Montague has been repeatedly singled out by Chambers and Partners as one of the top antitrust attorneys in Pennsylvania. He is lauded for his longtime stewardship of the Firm’s antitrust department and referred to as “one of the most accomplished figures in the Pennsylvania antitrust arena.”

Mr. Montague has also been recognized as a leader in his field in publications such as Lawdragon, Who’s Who Legal, The Legal 500, Law360, the Philadelphia Inquirer, and the Philadelphia Business Journal, among others. He has been repeatedly selected by Philadelphia Magazine as one of the top 100 lawyers in Pennsylvania and was one of two inaugural inductees into the American Antitrust Institute’s Private Antitrust Enforcement Hall of Fame in 2018. He is a Fellow of the American College of Trial Lawyers.

Among some of the cases in which Mr. Montague participated as either lead counsel or trial counsel are the Exxon Valdez Oil Spill Litigation, the Tobacco Litigation representing the State of Connecticut, and the Payment Card Interchange Fee Litigation, pending in the Second Circuit.

Mr. Montague was past Chairman of the Dickinson Law School Board of Governors and is Chairman of the Dickinson Law Association and led the shaping and finalization of the law school’s relationship with Pennsylvania State University. He is a board member and Executive Committee member of the Public Interest Law Center and a Trustee of the Haverford School.

Ellen T. Noteware Named an Unsung Hero

In July 2020, Ms. Noteware worked alongside Community Legal Services of Philadelphia and Villanova Federal Tax Clinic to file a preliminary injunction motion against the IRS and U.S. Treasury Department over their failure to rapidly and effectively distribute economic impact payments during the COVID-19 pandemic to eligible children of parents and caretakers who do not file federal income tax returns in the case Willard McGruder, et al. v. Steven Mnuchin, et al.

The suit alleges that the IRS and Treasury Department refused to issue economic impact payments (“EIPs”) in a timely manner to federal benefits recipients with eligible dependent children, as Congress directed in the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.

The CARES Act used the federal tax infrastructure to distribute EIPs as quickly and efficiently as possible. However, this was not an effective method for distributing EIPs to “non-filers”: individuals who are not required to file tax returns, mostly due to having severe disabilities.

In April 2020, after considerable Congressional and public pressure, the IRS and Treasury Department announced that they would automatically send EIPs to non-filer adults who are “known” to the federal government because they receive federal benefits. However, the IRS and Treasury Department later stated that they would not make automatic payments to eligible dependents of federal benefits recipients.

Instead, the IRS and Treasury Department announced that non-filers who receive Social Security retirement, disability, and Railroad Retirement Board benefits had less than 48 hours to add their dependents to their EIPs via a non-filer portal. Veteran Affairs and Supplemental Security Income benefits recipients were provided 10 days to use the non-filer portal. In sharp contrast to these tight deadlines, non-filers who do not receive federal benefits had until October 15, 2020 to access the same portal. Unsurprisingly, many non-filer federal beneficiaries with dependents were unable to meet the very short deadlines set by the IRS and Treasury Department.

Despite the Congressional mandate to provide payment rapidly, the IRS and Treasury Department decided that non-filer federal benefits recipients who missed the deadlines had wait to receive their payments until the spring of 2021, after they file 2020 federal income tax.

In response to the July 2020 preliminary injunction motion, the IRS reopened its non-filer tool, allowing hundreds of thousands of people who missed the initial deadline to request EIPs for their dependent children. The IRS announced this major policy reversal ahead of a preliminary injunction hearing scheduled for August 17, 2020. With this policy change, federal benefit recipients who did not file a 2018 or 2019 tax return had until September 30, 2020 to apply for the supplemental $500 payment for their qualifying children.

Thanks to Ms. Noteware’s efforts with Community Legal Services of Philadelphia and Villanova Federal Tax Clinic, people across the U.S. were able to obtain the dependent benefit payments Congress intended for them to receive and that they so desperately needed.

Camille Fundora Rodriguez Named a Lawyer on the Fast Track

Ms. Rodriguez is a Shareholder in Berger Montague’s Employment and Unpaid Wages Department, where she specializes in class and collective actions on behalf of workers who are not paid properly in a variety of industries across the country. She has assisted in securing numerous significant settlements for the workers Berger Montague represents, totaling well over $100 million.

Notable recent settlements where Ms. Rodriguez served as counsel include: Gonzalez v. Veritas Consultant Group, LLC, d/b/a Moravia Health Network, No. 2:17-cv-1319-TR (E.D. Pa. March 13, 2019) ($1.4 million settlement on behalf of home health aides); Nicks, et al. v. Koch Foods, Inc., et al., No. 1:16-cv-06446 (N.D. Ill.) ($625,000 settlement on behalf of live-haul chicken-catching crew members); Nicks, et al. v. Peco Foods, Inc., No. 7:16-cv-1057 (N.D. Ala. Aug. 2, 2019) ($675,000 settlement on behalf of live-haul chicken-catching crew members); Cooper v. All American Home Care LLC, et al., No. 2:17-cv-01563-PBT-TR (E.D. Pa. Feb. 19, 2019) ($400,000 settlement on behalf of home health aides); Thorpe v. Golden Age Home Care, No. 2:17-cv-01187-TR (E.D. Pa. Sept. 28, 2018) ($500,000 settlement on behalf of home health aides); Ayala Herrera v. Rolling Green Landscape & Design, No. 2:17-cv-03176 (E.D. Pa. Sept. 26, 2018) ($143,000 wage and hour settlement on behalf of a group of six landscaping workers; Ms. Rodriguez served as co-counsel with Justice at Work). In addition to the above cases, Ms. Rodriguez was recently appointed as one of three counsel for the settlement collective in a multi-million-dollar settlement against a nationwide waste disposal company.

Ms. Rodriguez has also won significant legal victories for her clients through her tenacious advocacy, which includes obtaining summary judgment against an employer that provided delivery services to Amazon, based on its unlawful day rate payment scheme. See Hickman v. TL Transportation, LLC, 218 F. Supp. 3d 718 (E.D. Pa. 2018) (summary judgment granted to plaintiffs, holding that defendant employer violated the FLSA by failing to pay overtime premiums). Other recent victories where Ms. Rodriguez served as counsel include: Hickman v. TL Transportation, LLC, 317 F. Supp. 3d 890 (E.D. Pa. 2018) (personal jurisdiction existed over individual defendants in FLSA and Pennsylvania state law claims); Nicks v. Koch Meat Co., Inc., 265 F. Supp. 3d 841 (N.D. Ill. 2017) (conditionally certifying a nationwide collective of live-haul chicken-catching crew members); Nicks v. Koch Meat Co., Inc., 260 F. Supp. 3d 942 (N.D. Ill. 2017) (denying motion to dismiss and holding that FLSA complaint sufficiently alleged employer’s alter ego liability for wage and hour violations).

Ms. Rodriguez and her colleagues in the Firm’s Employment and Unpaid Wages Department have received high judicial praise for their work. Recently, the Honorable Judge Timothy R. Rice, United States Magistrate Judge for the Eastern District of Pennsylvania, described Ms. Rodriguez and the Berger Montague team as “some of the finest legal representation in the nation,” who are “ethical, talented, and motivated to help hard working men and women.”

Class Action Litigation Department of the Year

The Legal Intelligencer named the entire Firm Class Action Litigation Department of the Year for its exemplary work in class action cases such as In re Namenda Direct Purchaser Antitrust Litigation, Michael Bentley, et al. v. LG Electronics U.S.A. Inc., and In re Patriot National, Inc. Securities Litigation.

In the Namenda litigation, Berger Montague’s team, led by David F. Sorensen, served as co-lead counsel for the class of direct purchasers of the Alzheimer’s drug Namenda. On October 28, 2019, the parties announced a settlement of $750 million, the largest settlement in Hatch-Waxman antitrust litigation with a single defendant in history. The court approved the settlement on May 27, 2020.

The lawsuit alleged that Forest Laboratories worked to delay and impair generic competition for Forest’s immediate-release prescription drug, Namenda IR. Forest’s alleged actions included entering into an unlawful “pay for delay” agreement with its prospective generic competitor, Mylan, and then orchestrating a “hard switch” product hop from immediate-release Namenda to extended-release Namenda XR. As a result of Forest’s conduct, purchasers were injured from the loss of earlier, unconstrained, lower-priced generic competition.

The court had precluded Forest from contesting that its “hard switch” product hop constituted anticompetitive conduct in light of a prior ruling in another case enjoining Forest from continuing its “hard switch” product hop campaign. On August 2, 2018, Judge McMahon denied defendants’ motion for summary judgment and granted the direct purchaser plaintiffs’ motion for class certification. Trial had been scheduled to commence on October 28, 2019, the day the $750 million settlement was announced.

In Michael Bentley, et al. v. LG Electronics U.S.A. Inc., Berger Montague’s team, led by Shanon J. Carson, has been litigating a class action lawsuit against LG Electronics U.S.A., Inc. (“LG”) on behalf of its clients and a class of consumers who experienced No-Cooling Events or shut-down issues with their LG refrigerators. On August 19, 2020, the court granted preliminary settlement approval.

Under the settlement agreement, the 1.55 million class members had until February 5, 2021 to submit a claim. Settlement class members were eligible for a cash payment if their LG Refrigerator stopped cooling and within five years of purchase, they:

  • Paid for parts to have their LG Refrigerator repaired (up to 100% reimbursement);
  • Paid for labor to have their LG Refrigerator repaired (up to 100% reimbursement);
  • Had unsuccessful repairs (up to $1,000 depending on number of repairs);
  • Had delayed repairs (up to $1,000 depending on length of delay);
  • Replaced their LG Refrigerator because it stopped working ($650); and/or
  • Had property damage such as spoiled food, beverages, medicine, or other perishables, or from property damage such as leaking (up to $3,500)

Also under the settlement, the warranty was extended on covered models to five years from the date of purchase including all labor costs related to cooling repairs during that period. Settlement class members were also provided free warranty service if their refrigerators stopped cooling, even if the original warranty had expired. LG also agreed to:

  • Create an LG Refrigerator Customer Care Team to address No-Cooling Events with live operator support;
  • Increase the number of its service technicians;
  • Implement faster repair service;
  • Implement a new mobile service application for the use of service technicians;
  • Invest in efforts to develop and upgrade parts and software to improve the cooling performance of LG refrigerators;
  • Implement a proactive consumer outreach program; and
  • Enhance Customer Care to provide qualifying settlement class members who experienced multiple No-Cooling Events during the extended warranty period with cash payments.

In Patriot National, Berger Montague’s team of Lawrence Deutsch and Jacob M. Polakoff served as co-lead counsel in a class action lawsuit concerning, among other things, materially false and misleading statements made by Patriot National and certain individual defendants about Patriot National’s business. These false statements included the company’s failure to adhere to its publicly disclosed Policy Regarding Transaction with Related Persons and the fact that Patriot National’s most important customer, a related entity, was on the brink of failure. Co-lead plaintiffs alleged that the price of Patriot National common stock was artificially inflated as a result of these false and misleading statements, and that the stock price declined when the truth was revealed.

U.S. District Judge Edgardo Ramos preliminarily approved a $6.5 million settlement in July 2019, and the settlement received final approval in November 2019. Following briefing and oral argument on the objectors’ appeal, the Second Circuit affirmed final approval of the settlement on October 2, 2020.

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