The EEOC have claimed that two California DFEH attorneys have a conflict of interest; which could upend the objections to the Activision Blizzard settlement, and even the entire sexual harassment and discrimination case.
The U.S. Equal Employment Opportunity Commission (EEOC) was the latest of several federal agencies to sue Activision Blizzard (also including the Securities and Exchange Commission, the Communications Workers of America). Later the same day, Activision Blizzard announced they had reached an $18 million USD settlement deal with the EEOC.
California’s Department of Fair Employment and Housing (DFEH) objected to the settlement. They stated it would harm their case, as waivers would be signed and evidence (personnel files and other documents referring to sexual harassment incidents, retaliation, and discrimination) is proposed to be destroyed.
The two attorneys handling the DFEH case are alleged to have previously worked for the EEOC. During that time, they investigated allegations against Activision Blizzard; those same allegations which were settled, but they are now objecting to. As stated on page 4 of the memorandum:
“Specifically, two DFEH attorneys—who play leadership roles within the organization—previously served as EEOC [redacted] who helped to direct the EEOC’s investigation into Commissioner’s Charge No. 480-2018-05212 against Activision Blizzard, Inc. (“Activision”). 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 creates a conflict of interest, breach of ethics, and violates the California Rule of Professional Conduct for attorneys. The EEOC claim they had even spoken to the two attorneys about the conflict of interest prior to the objection. When the EEOC continued to object to discussing the case with DFEH attorneys, the latter “disconnected from the call.”
To make matters more suspicious, the EEOC claims the DFEH had hired new attorneys after being informed; serving the objection hours later. The speed the objection was produced with new attorneys “strongly suggesting that the motion is a product of the prohibited representation;” the two attorneys suspected of the conflict of interest.
The EEOC further claims this would apply to all of the attorneys working on the DFEH case; as the DFEH solicitors were advised by the attorneys in question. This means the entire DFEH legal department would be barred from continuing their objection.
Since the DFEH objection is the “product of prohibited representation,” the objection would need to be thrown out. A new objection would need new attorneys, without access to the information the prohibited attorneys had.
It should be noted due to the redacted information, what those new attorneys cannot use is not public knowledge. At worst it could mean most, if not all, of the details of the settlement itself.
Harvard-educated lawyer and Opening Arguments podcast host Andrew Torrez explained in more detail.
“The EEOC, understandably, freaked out. 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!”
Attorney Richard Hoeg shared his thoughts on Torrez’ tweet. “This is a pretty massive thing,” Hoeg tweets, “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 [sic] suit.”
Was this some Machiavellian scheme by Activision Blizzard, or blind luck thanks to the actions of others? Sound off in the comments below!
As previously reported, the California Department of Fair Employment and Housing concluded a two year investigation. Their findings lead to a lawsuit against Activision Blizzard for “frat boy” style sexual harassment; possibly leading to one woman committing suicide on a company trip. There were also claims of discrimination for women being paid less, and promoted less frequently and after longer periods of time.
Activision Blizzard stated that while there was no place for any kind of harassment in the industry, they felt the Californian report “ includes distorted, and in many cases false, descriptions of Blizzard’s past.” An internal email from Activision executive Frances Townsend also described the allegations as “factually incorrect, old and out of context.”
In response, almost 1,000 current and former Activision Blizzard employees signed an open letter condemning the response as “abhorrent and insulting.” It also called for official statements to recognize how serious the allegations were, and demonstrate compassion for the victims.
Staff led a walkout on July 28th. Their demands included ending mandatory arbitration clauses in all employee contracts, adopting policies to improve representation at all levels of the company, publishing pay data to show women are paid and promoted fairly, and hiring a third party to audit the company’s executive and HR staff. Sources claimed staff would not be punished for the walkout, and had paid time off.
CEO Bobby Kotick later stated that the company’s initial response was “tone deaf.” He announced the company was bringing in law firm WilmerHale to conduct an immediate review of their policies and procedures.
Kotick also stated the company would investigate all claims, create safe spaces for Listening Sessions organized by third parties, an immediate evaluation of managers and leaders, compliance resources for diverse hiring, and removing NPCs from World of Warcraft inspired by those named in the allegations. Employees stated they were dissatisfied with Kotick’s response for not addressing their demands.
Almost 500 former and current Ubisoft employees announced their support for Activision Blizzard staff in an open letter; calling for new industry-wide rules and processes. Jeff Strain, a former Blizzard Entertainment developer and founder of Undead Labs, recently called for unionization of the video games industry.
An “alliance” of Activision Blizzard staff also rejected WilmerHale as the third party auditing the company. This was due to an alleged conflict of interest, the law firms alleged “history of discouraging workers’ rights and collective action,” and being led by Stephanie Avakian; allegedly specializing in “protecting the wealthy and powerful.”
Coca-Cola and State Farm announced they were reassessing their partnerships with Activision Blizzard’s Overwatch League, pulling their promotions from upcoming events. They joined T-Mobile who pulled support from the Call of Duty league shortly after the controversy broke.
Activision’s logo was also omitted from trailers and alpha builds of Call of Duty: Vanguard; later stated as a “creative choice that reflects how Vanguard represents the next major installment in the franchise.”
Blizzard Entertainment also announced they would be renaming Overwatch character McCree (due to being named after a developer named in the allegations), and censoring sexual content in World of Warcraft. This has included censoring in-game paintings featuring women with deep cleavage or in their underwear.
Other changes have included removing “negative” emotes (which some may deem suggest physical or sexual assault and mockery) and adding more positive ones, renaming suggestive enemies (and adding male enemies to some purely female mobs), mounts, and achievements. Flirting and sexually suggestive or otherwise “inappropriate” jokes from player characters were also removed.
Frances Townsend, an Activision Blizzard executive and former Assistant to the President for Homeland Security and Counterterrorism, deleted her Twitter account; after backlash against her tweet promoting “the problem with whistleblowing.”
Claims from temporary workers have been added to the lawsuit; along with allegations of Activation Blizzard destroying documents relating to employees and pay.