DFEH accused of ethics violations amid Activision-Blizzard lawsuit

Progress was slow, but for a while this story had a very clear cut bad guy. However, it seems the DFEH may have shot itself in the foot after another authority got involved too. At face value, it should have been a good thing that the Equal Employment Opportunity Commission, a federal agency, filed their own lawsuit against Activision-Blizzard. That's some real heat, right? Unfortunately, things got a bit complicated.

The EEOC's lawsuit, unlike the one with the DFEH, wasn't destined to drag out; Activision-Blizzard almost immediately shot for a settlement valued at $18 million. Pocket change for a company this large, but still big enough a number to placate those in decision making positions, it seems. The problems started when the settlement was revealed to allow the company to destroy evidence related to the case, since it would be closed.

When this became clear, the DFEH filed an official objection to the settlement between the EEOC and Activision-Blizzard. The DFEH's stance is that the settlement would allow the company to get rid of documents and records pertaining to their own case, since there is overlap, and that this would harm the proceedings. 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. This makes sense, and is a valid take, but unfortunately stepping on the EEOC's toes gave the federal agency a reason to torpedo the DFEH - not just their objection, but possibly the whole lawsuit. The EEOC's response in opposition of the objection dropped a major legal bombshell, which the agency most likely knew already and was sitting on for tactical reasons.

The DFEH lawsuit and investigation into Activision-Blizzard was led by a pair of lawyers who recently worked for the EEOC. While with the EEOC, they also investigated Activision-Blizzard, and their investigation was what in part led to the $18 settlement. A settlement that they, now part of the DFEH, are objecting to. Oops?

Not only is this a clear conflict of interest, but an ethics violation and outright illegal as per Californian law. What's even worse is the conduct of the two lawyers in question regarding this problem - when the EEOC brought up this conflict of interest in a remote call in which both were taking part, they simply disconnected the call.

However, this violation cascaded and may have further reaching effects that could harm the entire lawsuit. Right after the EEOC brought up the issue first, the DFEH retained new counsel and removed the offending lawyers - however new appeals and other motions have been filed too quickly after the replacement to be entirely the work of the new lawyers, and are therefore "tainted" by the previous ones.

Additionally, the EEOC argues that in a legal sense, the conflict of interest stemming from the two lawyers who led the lawsuit and investigation also branches out and affects everyone they worked with, so their replacement is not enough. If this doesn't sink the entire case wholesale, it will definitely slam the brakes and damage it.

Right now, things don't seem to be so bleak; the EEOC is only pushing against the objection to the settlement, and seemingly has no intent to exert control over any aspect of the sexual harassment lawsuit between the DFEH and Activision-Blizzard that does not directly involve them or their settlement. This means that Activision-Blizzard very well may end up being allowed to destroy evidence, but then that's something they've already been doing.

That said, this is a pretty major blemish on the DFEH's case, and the lawyers committing the ethics violation messed up big time - their mistake could affect all future proceedings, as Activision-Blizzard's lawyers might constantly try to find ethical faults and loopholes from now on.

In any case, this is definitely a key event in the on-going legal struggle, and may leave its mark on the entire future of the lawsuit.