Things are about to get messy when it comes to the state of California’s lawsuit against Activision Blizzard, with a federal agency accusing lawyers leading the state’s case of ethical violations that could potentially be against state law.
Back in July, the California Department of Fair Employment and Housing (DFEH) sued Activision Blizzard, citing widespread sexual harassment and discrimination. Subsequent investigations emerged, including a lawsuit from the Federal Equal Employment Opportunity Commission (EEOC). That lawsuit was swiftly settled, with Activision Blizzard agreeing to pay out $18 million in a settlement to make amends to victims. Any money that remains unclaimed by victims will be donated to relevant charities.
The DFEH, however, is legally objecting to the settlement, saying it could potentially damage its case, as the settlement may lead to the sealing, destruction, or tampering of evidence critical to the state’s investigation.
Now, the EEOC is taking issue with the DFEH’s objection, in the process alleging that the DFEH may have committed some major ethical violations. As explained by PC Gamer, the issue is that the two lawyers leading the state’s case appear to have previously worked for the EEOC. Not only that, but the lawyers actually worked on the EEOC investigation of Activision Blizzard itself, which led to the same settlement the DFEH now opposes. As explained in the EEOC’s memorandum on the issue:
“Specifically, two DFEH attorney–who play leadership roles within the organization–previously served as EEOC who helped to direct the EEOC’s investigation into Commissioner’s Charge No. 480-2018-05212 against Activision Blizzard, Inc. These same attorneys then proceeded to represent DFEH in connection with these intervention proceedings, which seek to oppose the consent decree that arose out of the very investigation they helped to direct while at the EEOC.”
If true, it would be a breach of California Rules of Professional Conduct. As explained by lawyer Andrew Torrez, host of the Opening Arguments podcast, the California Rules of Professional Conduct explicitly prohibits former governmental employees from “represent[ing] a client in connection with a matter in which the lawyer participated personally and substantially as a public official or employee.” And as pointed out by lawyer Richard Hoeg, it’s a pretty big deal.
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This is a pretty massive thing, and if true would call into question large portions of the DFEH process (certainly as against the EEOC directly). It might even provide Activision with its own defense to the oroginal suit.
— Richard Hoeg (@HoegLaw) October 9, 2021
The violation is something the EEOC is claiming that applies to all lawyers working the state of California’s case. Making matters worse is that it appears the DFEH may have realized its mistake. Per the memorandum:
“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.”
Activision Blizzard did not respond to GameSpot’s request for comment on the matter. The revelation could have major implications for the Activision Blizzard lawsuit. The EEOC is effectively saying that any objections to the $18 million settlement be tossed out unless the DFEH starts from scratch, and the EEOC’s accusations could potentially derail the DFEH’s entire lawsuit. It’s unclear what exactly will happen next, but it’s safe to say the entire Activision Blizzard lawsuit situation is about to get a lot more complicated.