Activision Blizzard is currently facing a lawsuit in the state of California, brought by the Department of Employment and Housing (DFEH). The lawsuit alleges that Activision Blizzard is a company rife with Discrimination, sexual harassment and a ‘frat boy’ culture– Claims that Activision Blizzard denies. CEO Bobby Kotick says “People will be held accountable for their actions“And, about a fortnight ago, we found out that Activision Blizzard was also in talks about a separate lawsuit being brought by the Equal Employment Opportunity Commission (EEOC), and $18 million. had agreed to settle for.
The DFEH objected to the settlement last week, arguing it would lead to “effective destruction” of evidence critical to its case and cause “irreparable damage” to its own trial. An important fact: DFEH is a state department of California, whereas EEOC is a US federal agency. DFEH’s objection reads, in part:
“The proposed consent decree also includes provisions approving the effective destruction and/or tampering of evidence critical to DFEH’s case, such as personnel files and other documents making references to sexual harassment, retaliation and discrimination.”
The DFEH is basically saying that information potentially relevant to its case could be sealed by the terms of the settlement, and wants time to build a full case in court as to why.
Subsequently, the EEOC responded quickly with a memorandum of points opposing DFEH’s appeal, which included a very legally surprising revelation This makes the case look like this is going to be a huge mess.
The long and short is that the DFEH case is led by two attorneys who previously worked for the EEOC, and while working for the EEOC they investigated Activision Blizzard regarding claims that have led to settlement. To which they are now objecting.
If true, it would constitute a conflict of interest, a breach of professional ethics, and a violation of California law on the conduct of attorneys. According to the memorandum:
“Notably, two DFEH attorneys – who hold leadership roles within the organization – previously served as EEOCs, leading the EEOC’s investigation into Commissioner’s Charge No. 480-2018-05212 against Activision Blizzard, Inc. These same attorneys went on to represent the DFEH. In relation to these intervention proceedings, they seek to oppose the consent decree that resulted from the investigation they helped direct to the EEOC. Was.”
This is a violation of the California Rules of Business Conduct, and the EEOC claims it applies to all DFEH attorneys on the matter. Making matters worse is that DFEH seems to have realized this as of late, and has tried to work its way out in some unrelated ways. The EEOC’s memo claims that it originally hired new lawyers, then a few hours later, made an appeal, which apparently would have involved the involvement of two lawyers.
“After being informed of this conflict, DFEH retained the new counsel but appears to have filed the current intervention motion only hours after retaining this counsel, strongly suggesting that the motion be restricted. is a product of representation. For this reason, intervention motions should not be permitted and DFEH attorneys should be barred from providing work products or advising new attorneys in connection with these intervention proceedings.”
These latest legal documents had previously confronted the two lawyers under consideration by the EEOC regarding this conflict of interest. When this happened, the lawyers dropped the call: “DFEH Attorney 2 began speaking about the merits of the intervention motion, but Ms Park reiterated the EEOC’s objections to the conflict of interest rules. […] Ms Viper and DFEH Attorneys 1 and 2 disconnected from the call after EEOC counsel objected to discussing the merits of the case with DFEH lawyers.”
OK: so we have a potential ethics violation. what are the consequences? The EEOC says that not only were the two lawyers largely involved in the case, but because they were instructing other DFEH solicitors, the DFEH entire legal department Prohibition on furthering this objection:
“No claim can be made that there was ‘separation’ at the time [these] Lawyer[s] from any participation in representing the DFEH in relation to the intervention proceedings’, as would be necessary to show that the screening took place in a timely manner. Thus, all DFEH lawyers should have been barred from representing DFEH in this case.”
It stated that the work done so far by DFEH is now “the product of restricted representation and that DFEH attorneys must prevent the present attorney from providing work products or advice relating to these proceedings”. So the current DFEH appeal against the EEOC’s agreement with Activision Blizzard must be dismissed and, if DFEH wants to continue to object, its new attorneys should not have access to it.
Elements of the memorandum have been amended in the public release, and in particular certain details of confidential information that were apparently secret in the EEOC to both attorneys. It is abundantly clear that the EEOC is not at play here, and the DFEH is going to have a seriously difficult time not only continuing this appeal but also keeping this revelation away from its own trial. The usual legal provisions apply: this is what one party claims; The court may surprise us all; DFEH may well have come back with an unexpected counter-argument.
If you want immediate feedback from someone who knows what he’s talking about, Andrew Torrez is a Harvard-educated attorney who Opening Logic Podcast. he has written following thread About this memorandum:
“EEOC, understandably, exited [about the two lawyers]. The DFEH quickly enlisted outside counsel and placed newcomers in charge of the interference, but if the facts are as they appear, the *thorough* DFEH investigation is subject to California Rule 1.11(a)(2) may violate. Professors’ rules of conduct that explicitly prohibit “representing” former government servants[ing] A client in relation to a case in which the lawyer personally and as a public official or employee “participated without prior written consent” which did not expressly take place. If the DFEH fails to *screen* former EEOC lawyers, it is in trouble. But if it lets those lawyers investigate activity without the EEOC’s permission, things are about to get very ugly. Can’t wait to see the side of DFEH!”
NS Lawyer Richard Hoegg Called this development “a huge deal, and if true it would call into question a large part of the DFEH process (of course directly against the EEOC). It may also have provided Activision with its defense for the original suit.” Yes. Keep watching.”
So: Not feeling well for DFEH. The EEOC’s lawsuit ends by emphasizing that the alleged ethical violation is not merely doctrinal but, in this case, directly related to the various players at hand.
“The need for a stronger protective measure is particularly great given the unique circumstances of this case, where two former EEOC lawyers at the EEOC involved in the investigation of the allegations against Activision, now wish to oppose the consent decree that would have led to the same investigation. is the result.”
Biggest question? Does this simply quell DFEH’s objection to the EEOC settlement or, as Hoegg suggests, will it somehow form part of Activision’s defense against DFEH in the original lawsuit.
Either way it is completely surprising that DFEH, inadvertently or not, made such a basic legal error – the two attorneys in question could, in theory, have declared conflict from the beginning and DFEH allowed to work on the case. can ask for. Regardless, who would have turned it all off. He apparently didn’t. So it looks like this could be a gift to Activision Blizzard’s lawyers in the ongoing DFEH case, as well as a major legal mess.