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Morgan, Lewis & Bockius’ potential liability to former Brobeck, Phleger & Harrison employees hinges on the date the firm purchased Brobeck’s furniture and equipment. That’s what Senior U.S. District Judge William Schwarzer concluded in a tentative ruling Friday dismissing the employees’ suit against Morgan Lewis. The employees claim that under the federal Worker Adjustment and Retraining Notification (WARN) Act, the firms should have provided 60 days’ notice of Brobeck’s closure or, alternatively, 60 days of severance pay. They contend Morgan Lewis is liable since the firm hired dozens of Brobeck lawyers and staff, took over its office space and purchased part of its assets after Brobeck shut down. “Assuming a jury were to find that there was a sale of part or all of Brobeck’s business, Morgan Lewis’ liability under the Act turns on whether it became responsible for giving notice of their termination of employees,” Schwarzer wrote. “The Act provides that the seller shall be responsible ‘up to and including the effective date of the sale.’” Since Morgan Lewis’ agreement to pay $2.1 million for Brobeck furniture, fixtures and equipment became effective Feb. 14, 2003, Schwarzer said, Brobeck was responsible for giving notice to employees until that date. Brobeck employees were laid off en masse that same day. The employees’ attorney, H. Tim Hoffman, of Oakland, Calif.’s Hoffman & Lazear, said he will try to change the judge’s mind at a hearing Tuesday on Morgan Lewis’ motion for summary judgment and, failing that, will appeal. He said the issue boils down to interpreting U.S. Department of Labor regulations implementing the WARN Act. The employees contend that the Department of Labor interpreted the act to mean the buyer became responsible to notify employees at the time of the sale, not the effective date of the sale. Schwarzer also dismissed the employees’ claims that Morgan Lewis is a successor to Brobeck under the California Labor Code. He said Morgan Lewis did not purchase Brobeck’s principal assets, assume Brobeck’s debts or liabilities or pay an inadequate sum for the limited assets it did purchase. Last year, U.S. District Judge Claudia Wilken ruled that Morgan Lewis was not a successor to Brobeck but that it was up to a jury to decide whether the firm purchased part or all of Brobeck’s business. The case, McCaffrey v. Brobeck, Phleger & Harrison, C03-2082, was reassigned to Schwarzer last month. Hoffman said it was unusual for a case to be transferred in the summary judgment stage and suggested the ruling would have been different had Wilken remained on the case. “Wilken felt there were triable issues that should go to a jury,” he said. “No new issues were raised. She knew about the sale of furniture and fixtures. That was a question I thought she had already decided.” Morgan Lewis attorney Jiyun Lee, a partner at Folger Levin & Kahn, said she would not comment on the judge’s tentative ruling.

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