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Activision Blizzard Request to Pause DFEH Investigation Denied - May Continue to Look Into Ethics Violation
23/10/2021 à 18:26
Earlier this week, Activision Blizzard
filed a motion
to temporarily suspend California's sexual harassment and discrimination case, due to the alleged
conflict of interest and ethics violations
revealed by the U.S. Equal Employment Opportunity Commission. The Los Angeles Superior Court came back with a decision yesterday, denying the expedited request to pause the investigation, but still allowing the company's lawyers to look into whether any such violations actually took place.
Like the previous
DFEH request to intervene
EEOC's $18 million settlement
, Activision Blizzard's motion was "ex parte," or an expedited request asking the courts to pause the DFEH investigation while the company's lawyers investigated whether the State violated the California Rules of Professional Conduct. The expedited nature of both these motions is the important distinction, as an ex parte application asks the court to make an immediate decision based on the facts presented, rather than over the normal course of events which can include lengthy argument and counter argument from both sides. In both the DFEH's motion to intervene in the EEOC settlement and Activision's request to temporarily suspend the DFEH investigation, the request for an
has been denied, but that doesn't stop them from perusing the topics - in this case, specifically allowing everyone involved to continue looking into whether the DFEH violated procedural rules by engaging in misrepresentation, but not halting the entire case while they do so.
Activision Blizzard's application (left) requests for a stay in the DFEH case, temporarily pausing it while they sort out whether any violation of professional conduct has taken place. While the court denied the request, it does not prevent them from pursuing the matter, only requiring that they do so on their own time. Meanwhile, the DFEH continues to refute the EEOC's accusation (right).
This sequence of events is quickly becoming a legal battle of "he said/she said," in which both the California DFEH and the federal EEOC have painted very different pictures of ongoing events. While it seemed as though the EEOC came to a decisive, if somewhat inexpensive, settlement which included payments for discriminated against employees and a great deal of regulatory oversight for Activision Blizzard, the DFEH quickly
moved to intervene
with a variety of arguments, including claims that the settlement would hurt their investigation by directing Activision to destroy evidence of wrongdoing - interestingly, the second time that the
DFEH has made claims
that evidence is or would be destroyed, though both objections
were flatly denied
. Although the EEOC
responded with a clarification
that the agreement did not propose any destruction of evidence, they also dropped a bombshell by revealing that the DFEH employed two former lawyers from the EEOC who worked on the same case for both parties - a major violation of professional ethics.
The DFEH intervention (left) claims that the EEOC settlement directs Activision to destroy evidence, though the EEOC memorandum (right) clarifies that the agreement only directs those references to be removed from personnel files, not destroyed.
As expected, this prompted the DFEH to unleash fire of their own, first by stating that the two agencies were operating under a workshare agreement and that the EEOC violated it by sharing confidential information in their objection, and then by alleging that the two attorneys in question didn't actually handle the Activision case and were only minimally involved; thereby asserting that no professional or ethical violation took place. Like many of the arguments presented by both sides, this is subject to interpretation and debate - the DFEH claims that two attorneys worked in the "legal unit" of the EEOC, while the case was still being built within the "enforcement unit," though without knowing the inner workings of the EEOC, whether that means they did not have substantive involvement with the case will ultimately be for a judge to decide.
Michigan attorney Richard Hoeg, who has been following the case on the
series Virtual Legality, has given his own professional breakdown of the DFEH and EEOC conflict in his most recent hour long video.
The result of this legal posturing is a nightmarish jungle of argument and counter argument in which both agencies have creatively presented facts to best support their side. Understandably, the DFEH doesn't want to let Activision out of their sights, but the result of their investigation is far from a foregone conclusion and could very well result in a less than satisfying judgement. On the other hand, the EEOC has already come to a resolution which promises fair compensation for victims (to the extent that federal law allows), as well as a great deal of regulatory oversight to help ensure the situation does not repeat itself... which may not punish the company to the extent that some might like, but is a victory nonetheless. Caught between two warring parties ready and willing to undermine one another, it should be no surprise that Activision's lawyers are looking for a way to avoid the increasingly drawn out fight and get back to the already agreed upon settlement. That isn't to say nothing is being done though, as Activision Blizzard has already begun releasing details of their own internal investigations, leading to
disciplinary action and firing of over 40 employees
, while outlining further company-wide reforms being made.
We can't say where things go from here, but it feels as though the case will only become increasingly mired in jurisdictional accusation and counter argument as time goes on. Meanwhile, those who have actually suffered from sexual harassment and discrimination can only continue to wait and hope that justice will eventually be served.
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