Oakland is not an easy place to litigate when your client is a nuclear weapons lab.
After all, the jury pool extends to neighboring Berkeley, a designated “Nuclear Free Zone,” and there are signs that say as much within a few miles of the courthouse.
But Alameda County Superior Court in Oakland is where a team from Orrick, Herrington & Sutcliffe was called to defend Lawrence Livermore National Laboratory from discrimination and breach of contract claims filed on behalf of 130 workers who were laid off after the lab’s privatization in 2007. And in a situation like that, sometimes even a partial win can look like a decisive victory.
The case is not yet over. However, through a series of favorable pretrial rulings and a preliminary jury verdict denying the only claim carrying punitive damages, Orrick’s team led by San Francisco partner Patricia Gillette has managed to disarm the explosive case and shield the lab from potentially huge exposure.
In May, a jury found Lawrence Livermore National Security liable for breaching its employment contracts with five ex-employees and awarded them $2.8 million—less than half of the economic damages sought by plaintiffs attorney Gary Gwilliam of Gwilliam, Ivary, Chiosso, Cavalli & Brewer.
Moreover, Gillette, along with partners Andrew Livingston and Warrington Parker, persuaded the jury to reject a retaliation claim, which might have triggered punitive damages and attorneys’ fees against the lab. In the second phase of that case which began in early November, the Orrick lawyers persuaded the judge to disallow punitive damages, limiting the lab’s potential liability.
Achieving that kind of turnaround for clients in precarious legal positions distinguished Orrick’s employment litigation results over the last year. Gillette attributes her team’s success to creativity and collaboration. “This is a department of people who really think differently about legal problems,” she said.
On the wage-and-hour front, Sears, Roebuck & Co. turned to Orrick partners Lynne Hermle and Joseph Liburt in Silicon Valley to fend off a nationwide class action challenging the retail chain’s classification of 6,000 assistant store managers as exempt from overtime. With potential damages topping $500 million, the suit posed a serious threat, Hermle said.
The action, which included federal and state law claims, had been filed in Illinois. Working closely with in-house counsel at Sears, Hermle and Liburt pursued a strategy of dismantling the case along geographic lines and successfully severed the California state law claims. After U.S. Magistrate Judge Jennifer Thurston of the Eastern District of California denied plaintiffs motion for class certification in August 2012, the case withered. “The California case showed that plaintiffs could not possibly win,” said Hermle.
Hermle and Liburt also notched a win at trial for Genentech Inc. against a former sales representative who claimed he had been fired due to a seizure disorder. And in litigation against several brokerages over policies barring employees from opening outside trading accounts, Hermle credits her team with crafting the winning argument. Plaintiffs claimed the policies violated state law prohibiting “forced patronage.” Representing Morgan Stanley Smith Barney, Orrick argued that federal securities laws preempted the California labor code provision.
Defense counsel for the other banks took notice, Hermle said. “We were the first ones to file that motion,” she said. “Everyone else copied our papers and filed it.”
In April the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of four separate class actions on preemption grounds.
Orrick’s employment team has prevailed for other large clients. In an age discrimination case brought against Netherlands-based Rabobank by a former mortgage loan rep, Gillette dispensed with five claims at summary judgment. L.A. partner William Molinski picked up the baton at trial and obtained a complete defense verdict on the remaining claim.
The group has some high-profile matters on its slate for the upcoming year too. Hermle is lead defense counsel in the gender discrimination suit filed against Kleiner Perkins Caufield & Byers by former partner Ellen Pao. The venture capital firm lost a fierce fight to move the case into arbitration and the matter is now advancing in San Francisco Superior Court. And the firm represents the National Basketball Players Union in a suit over the ouster of longtime executive director Billy Hunter.
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