New information linked to the $18 million settlement between Activision Blizzard and the U.S. Equal Employment Opportunity Commission [EEOC] has shown potential ethical violations that may have a larger effect on the wider lawsuit between the company and California's Department for Employment and Housing [DFEH].
As reported by PC Gamer, the DFEH objected to a settlement between the EEOC and Activision Blizzard last week, on the basis the terms of the settlement could seal evidence necessary to its own case and cause harm to the DFEH's lawsuit against the company.
In response, a document filed by the EEOC opposing the DFEH's appeal raised a number of points and seemingly unearthed information that could not only undermine the department's appeal against the settlement but also its wider legal argument against Activision Blizzard.
According to the memorandum, the EEOC says that up until recently the DFEH's case against Activision Blizzard was being led by two lawyers who had previously worked for the EEOC and in particular on its own case against the company. If this is to be true, it would make the DFEH's objection a conflict of interest and could also be seen to be a breach of professional ethics as well as a violation of California's Rules of Professional Conduct.
"Specifically, two DFEH attorneys — who play leadership roles within the organisation — previously served as EEOC who helped to direct the EEOC's investigation into Commissioner's Charge No. 480-2018-05212 against Activision Blizzard, Inc," the memorandum states.
"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."
The DFEH seemed to have realized the slip up before filing its appeal as it replaced the two lawyers on the case. However, the EEOC's memorandum claims that as the DFEH's appeal was filed only a few hours after the department had brought in new counsel, it could still have had input from the lawyers in question.
"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."
Elsewhere in the memorandum, the EEOC argues that not only would the two attorneys have likely been involved in the case, but moreover they would have worked with and directed other members of the DFEH's legal department on it too – therefore leading to the claim that the DFEH's entire legal department should be barred from being able to take the objection forward any further.
"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."
On Twitter, video games lawyer and host of the Virtual Legality Podcast Richard Hoeg shared his reaction to the legal dispute between the EEOC and DFEH. He said, "This is a pretty massive thing, and if true would call into question large portions of the DFEH process (certainly as against the EEOC directly). Hoeg went on to further suggest it could even provide Activision its own defense to the DFEH's original suit.
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This is a pretty massive thing, 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 suit.
Stay tuned.
— Richard Hoeg (@HoegLaw) October 9, 2021
To read up further on the serious ongoing allegations of harassment and mistreatment of marginalized workers that Activision Blizzard is facing, please visit our timeline as well as our in-depth report on the subject.
Jared Moore is a freelance writer for IGN. You can follow him on Twitter.