Stick with me on this, because this is probably going to be a little confusing. At the end of September 2021, Activision Blizzard settled a lawsuit brought on by the U.S. Equal Employment Opportunity Commission (EEOC) for the lowly amount of $18 million (USD). This lawsuit would be used to "compensate and make amends" for employees impacted by the rampant sexual discrimination and harassment that has been well documented by now.
This was all well and good, right? Well, apparently not. New information has surfaced about the legal battle between the EEOC and Activision Blizzard that shows potential ethical violations may have occurred that may have an impact on the other lawsuit between Activision Blizzard and California's Department for Employment and Housing (DFEH).
This conflict of interest was first noted by PC Gamer. According to their report, the DFEH objected to the settlement between Activision Blizzard and the EEOC on the basis that the terms of the settlement could lock away evidence that is necessary to their own case. It could also possibly cause harm to their (DFEH's) lawsuit against Activision Blizzard.
"The proposed consent decree also contains provisions sanctioning the effective destruction and/or tampering of evidence critical to the DFEH's case, such as personnel files and other documents referencing sexual harassment, retaliation and discrimination."
So if this is all true, it would be a massive conflict of interest, plus a breach of professional ethics, plus a violation of California law that deals with the conduct of attorneys.
"Specifically, two DFEH attorneys—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."
"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."
"DFEH Attorney 2 began to speak regarding the merits of the intervention motion, but Ms. Park reiterated EEOC's objections regarding the conflict-of-interest rules [...] After EEOC counsel continued to voice objections to discussing the merits of the case with DFEH attorneys, Ms. Wipper and DFEH Attorneys 1 and 2 disconnected from the call."
"There can be no claim that there was timely 'isolation of [these] lawyer[s] from any participation' in representing DFEH in connection with the intervention proceedings, as would be necessary to show that timely screening took place. Thus, all DFEH attorneys were and should remain barred from representing DFEH in this matter."
"The EEOC, understandably, freaked out [about the two lawyers]. DFEH quickly engaged outside counsel and put new folks in charge of the intervention, but if the facts are as they appear, the *entire* DFEH investigation may violate Rule 1.11(a)(2) of Calif. Rules of Prof Conduct which explicitly prohibit 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" without prior written consent which apparently didn't happen. If DFEH just *failed to screen* the former EEOC lawyers, it's in trouble. But if it let those lawyers RUN THE INVESTIGATION OF ACTIVISION without permission from the EEOC, things are going to get very ugly. Can't wait to see DFEH's side!"
