The DFEH’s intervention claims argues that the EEOC settlement threatens their case, but the state may have bigger problems…
The State of California Intervenes
The two part story begins with the DFEH filing an expedited intervention against the EEOC settlement, claiming that it could do irreparable harm to their own three year investigation of Activision Blizzard. The intervention argued that the terms of the settlement were deficient in several ways and requested a fairness hearing between the three parties (the Activision, the EEOC, and the DFEH) to remedy. One point which stands out against the agreement directing Activision to remove references to allegations of harassment and retaliation from the personnel files of employees found to be eligible for claims under the terms of the settlement.
The clause directing Activision to adjust personnel files is a standard part of EEOC settlements intended to protect employees against whistleblower discrimination, but it does not mean that all the evidence is erased.
Unfortunately, this headline has been reported elsewhere a move on Activision’s part to destroy evidence essential to the DFEH’s investigation, not so subtlety suggesting the company is behind it, much like previous allegations of shredding documents. in actuality, it’s an EEOC directive to expunge personnel files in order to avoid the potential for abuse down the road, so that some malicious manager can’t discriminate against those who complained or received a settlement. It is a whistleblower clause specifically added for the protection of those employees and a standard part of EEOC agreements for that reason – rather than something cooked up for the protection of corporate executives. Ultimately a judge will decide the veracity of this and the other DFEH’s complaints, but Activision is still bound by the ongoing DFEH investigation, so the EEOC’s terms don’t give them free reign to destroy any and all documentation of wrongdoing.
The EEOC Reveals Conflict of Interest
Following the DFEH’s complaint, the EEOC filed their own opposition against the intervention, but not for the reasons you’d think. While it also argued against the merits of the intervention’s complaints, the EEOC’s opposition revealed that two lead lawyers in the DFEH intervention were not only former EEOC employees, but that they were also two of the key attorneys previously assigned to the EEOC’s investigation of Activision Blizzard! Because they joined the state’s investigation without the federal department’s knowledge or permission, and initially headed up the intervention against the $18 million settlement, at least part of the State’s investigation may violate Rule 1.11(a)(2) of the California Rules of Professional Conduct, which explicitly prohibits former government employees from representing a client in connection with a matter in which the lawyer personally participated without prior written consent.
The EEOC argues that by employing two attorneys who previously worked on the EEOC’s case against Activision, the DFEH has violated the California Rules of Professional Conduct.
This conflict of interest could represent a much bigger problem for the DFEH than the EEOC’s settlement, as it could be considered a violation of professional ethics, a potential breach of confidentiality, and could even result in the entire California suit being compromised. The document is heavily redacted, but outlines that not only did the DFEH engage in prohibited representation, but that the speed at which they retained new counsel after the fact was brought to light and subsequently filed their objection suggests that the motion was a result of the previous lawyer’s work. Because of the likelihood that the disqualified attorneys obtained important information in their prior representation or may have shared confidential information from the EEOC investigation they participated in, it threatens to tarnish the entire case, regardless of those particular lawyers being replaced.
After being informed of this conflict, DFEH retained new counsel but appears to have filed the present intervention motion just hours after this counsel was retained, strongly suggesting that the motion is a product of the prohibited representation. For this reason, the intervention motion should be disallowed and DFEH attorneys should be barred from providing work product to, or advising, new counsel in connection with these intervention proceedings.