DFEH Accused of Ethics Violations as Activision Blizzard Lawsuit Plunges into Chaos

As the Activision Blizzard lawsuit continues to expose problems regarding the company's unethical work practices, one of the agencies set to object against their latest settlement is engaging in ethics violations of their own.

The California Department of Fair Employment and Housing filed an objection last week against the settlement, arguing that it'd lead to the "effective destruction" of evidence critical to its case and cause "irreparable harm" to its lawsuit. However, the US Equal Employment Opportunity Commission (EEOC) was quick to point out a possible conflict of interest by the DFEH.

This was made known in a memorandum that contains points opposing the DEFEH's appeal. The biggest revelation from the memo is the following:

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."

In other words, this could be a potential breach of the California Rule of Professional Conduct. The EEOC claims that this applies to all of the DFEH's attorneys on the case. What's even worse, the DFEH tried to avoid these potential violations by hiring new lawyers who then served an appeal involving the lawyers in question. As the memorandum states:

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.

As a consequence, the EEOC alleges that the entire legal department of the DFEH has to be barred from taking the objection against Activision Blizzard forward:

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 work done by the DFEH is now] A product of prohibited representation and should bar DFEH attorneys from providing work product or advice to current counsel relating to these proceedings.

Attorney Richard Hoeg believes that this development is a massive thing that would put the DFEH's portions of the process into question.

Holy crap. I said that CA was apparently upset about the EEOC, but it may be much worse than that. Whole thread is worth reading, but the EEOC is alleging (see link) that the DFEH investigation is headed by former EEOC attorneys…who worked on that agency’s Activision case. https://t.co/zM6jDRfrVi

— Richard Hoeg (@HoegLaw) October 9, 2021

Unfortunately, it seems like this will be a huge problem that the DFEH will have to conjure up a counter against. This legal mishap may be used by Activision Blizzard in their defense against the DFEH in their original lawsuit. Thus, throwing a massive wrench into the plans of the California Agency.

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