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A state court of appeal upheld a $5 million age discrimination jury award against Nestle U.S.A. Inc. on Thursday, a ruling that opens the door for attorneys to use the state’s unfair competition law in employment discrimination cases. The unanimous opinion, authored by Second District Justice Joan Dempsey Klein, held that injunctive relief under Business & Professions Code �17200 is an appropriate remedy when businesses discriminate against older workers. “An employer which practices age discrimination has an unfair competitive advantage over employers who comply with the [Fair Employment and Housing Act] because older workers frequently are more highly compensated than their younger colleagues,” Klein wrote. According to Kenneth Rivin, a Los Angeles solo practitioner who represented the plaintiff in the trial phase of the case, Herr v. Nestle U.S.A., 03 C.D.O.S. 5043, marks the first time that California’s unfair competition law has been applied to workplace discrimination in a published opinion. It’s “a way to get some broader relief for discrimination victims,” said Rivin. “Especially if you can show that the discrimination was a policy.” In the opinion, Justice Klein, who is 78, cited evidence demonstrating a “continuous pattern of age discrimination” at the multibillion-dollar food conglomerate, and shot down Nestle’s various arguments to vacate the trial court’s verdict. She was joined in the opinion by Justices Patti Kitching and Richard Dennis Aldrich. George Abele, an employment law partner at Paul, Hastings, Janofsky & Walker who represented Nestle on appeal, did not return calls for comment. Sherman Oaks attorney Norman Pine, who represented the plaintiff on appeal along with his wife, Beverly Tillet Pine, said he was gratified with the ruling but could not comment further as he was out of the country and had not yet read the opinion. The case involved Richard Herr, a Nestle manager in his mid-40s who was repeatedly passed over for promotions. While Herr was qualified for numerous job openings and had a track record of positive performance evaluations, Nestle repeatedly offered the jobs to employees in their early 30s, many of whom did not meet the jobs’ minimum posted requirements. In 1995, after being passed over for the eighth time and frustrated by his inability to advance within the company, Herr quit. “There is abundant evidence that the February 1995 failure to promote Herr was just one more manifestation of Nestle’s discriminatory policy of denying promotions to employees in their 40s or older,” Klein wrote. Thursday’s opinion affirmed a Los Angeles jury’s 2000 verdict that leaves Nestle on the hook for $5.16 million in compensatory and emotional distress damages to Herr, as well as $1.7 million in attorneys fees, for constructive discharge and age discrimination under FEHA. That portion of the ruling was unpublished. The published portion of the opinion upheld a bench ruling, arising out of Herr’s unfair competition claim, that enjoins Nestle from discriminating against employees older than 40 for promotions. The injunction also requires Nestle to repudiate a 1993 memo by parent company Nestle S.A.’s then-Chief Executive Officer Helmut Maucher, which laid out a policy to “continue hiring, identifying and developing young people to have in the long term enough resources for future management.” Klein also denied a cross-appeal by Herr, which contended that the trial court erred in granting non-suit to his punitive damages claim. While Nestle acted with conscious disregard of Herr’s right to be free of age discrimination, the company’s conduct did not rise to the level of base, vile, contemptible or despicable conduct, she wrote.

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