As the legal maelstrom continues to grow in the multiple cases against Activision Blizzard, things have taken one of the most bizarre twists yet. The EEOC (with whom Activision Blizzard are attempting to settle) has accused the California DFEH (who are attempting to intervene in that settlement) of using its own former lawyers to fight against them.
By the end of the Activision Blizzard trials (because remember, there are several), I will have read enough legal documentation to bluff my way through the bar exam. Jesus, this is a mess, and it’s becoming even worse since it was revealed two former Equal Employment Opportunity Commission (EEOC) attorneys are now working with the California Department of Fair Employment and Housing and (DFEH).
The ongoing three-way legal battle between the EEOC, Activision Blizzard, and the California DFEH is now even more heated, but a little background first: Following a three-year investigation into Activision Blizzard by the EEOC, a potential settlement between the two parties was reached and filed on the 27th of September. Unfortunately, the $18m proposed settlement has been widely criticized as a slap on the wrist for billion-dollar company Activision Blizzard. A week later, the California DFEH filed a motion to intervene in said settlement, claiming procedural mistakes on the part of Activision Blizzard and the EEOC, and that the settlement would do irreparable damage to the DFEH’s own trial against the publishing behemoth.
Then this past Saturday, October 9th, the EEOC responded to the DFEH’s unwelcome intervention motion by claiming that two of the DFEH’s lawyers had a glaring conflict of interest, as before joining the DFEH case they’d previously played an essential role in the EEOC’s own investigation into Activision Blizzard. . Something that’s then made even more obfuscated by the revelation that the EEOC and DFEH were participating in a worksharing agreement where personnel and evidence would be shared between the two organizations for the duration of their respective investigations. This is, to put it lightly, an insane mess.
To support its claims, the EEOC points to multiple elements in the DFEH’s filings that it alleges could only have been provided by former EEOC lawyers. It specifically claims that the two attorneys “helped to direct” the EEOC’s investigation, making this apparent conflict of interest even more blatant.
Specifics of the two DFEH lawyers’ prior EEOC representation have been sealed by the Courts, which makes what happened here difficult to report on in full. What we know currently is that two key DFEH attorneys, Attorney 1 and Attorney 2, joined the DFEH team after leaving the EEOC. They were then an essential part of the DFEH’s motion to intervene in the EEOC settlement, and were even included in the “meet and confer” session that occurred between the three parties on October 5th.
The DFEH, in turn, claims to have been totally unaware of its attorneys’ prior relationship to the EEOC. This is either not entirely accurate, or, as the EEOC claims, a sign that the DFEH did not properly screen the attorneys beforehand. Either way, this is such a glaring error that one cannot help but wonder what the hell is happening in this case.
Taylor Markey, an attorney for the EEOC, claims in her statement to the court that, DFEH Attorney 2 responded by claiming it was her “fiduciary duty” to the EEOC, her former client, that she, “raise awareness of the alleged conflict between the proposed consent decree and EEOC policies.” This is an explicit critique of the EEOC, as Attorney 2 is effectively claiming that the EEOC is going against its own rules and stated goals by pursuing its current, widely criticized $18m settlement with Activision Blizzard. This is an incredibly serious accusation for Attorney 2 to make, with Attorney 2 seemingly risking her standing as a practicing lawyer to join the DFEH in its intervention against the EEOC settlement.
According to the information the EEOC released, during the October 5th meet and confer session the DFEH attorneys were consistently stonewalled. They would describe, at length, their legal and ethical reasons for intervention, which the EEOC would respond to by pointing out that DFEH Attorney 1 and 2 had no place on the case according to conflict-of-interest regulations. Eventually, both the DFEH Chief Counsel and Attorneys 1 and 2 disconnected from the meet and confer, at which point the meeting continued with just the DFEH’s third-party representative. Which is to say, they hung up.
Based on the EEOC’s objections, the DFEH will be represented by a third-party counsel in any further intervention action. The EEOC claims that the conflict of interest is so dire that the DFEH is totally compromised, and can no longer represent itself in court regarding the intervention. What these events ultimately mean for the DFEH’s continuing case against Activision Blizzard remains to be seen.
Most recently, on October 11, 2021, the DFEH filed an objection to the EEOC’s opposition. Stating that multiple emails provided by the EEOC were privileged and confidential, they argued they were thus not admissible into the public record. Furthermore, the DFEH reveals emails that argue, while it did agree to let the EEOC take the lead on investigating harassment claims, the agency never actually ceded its rights to pursue litigation against Activision Blizzard following the investigation.
All of this nonsense compounds to suggest that the Activision Blizzard trials will only get much, much worse before they get any better.
Update, 10/12/2021 1:40 p.m. ET: Presiding Judge Dale S. Fischer issued an order denying the California DFEH’s ex parte motion. This means that it will have to wait the normal time (seven days after meeting and conferring) to file its intervention motion against the EEOC, which is to say that this mess will continue to drag along for a while longer.