Lynne Hermle, a Silicon Valley employment partner, has a long track record of
defeating class certification, obtaining summary judgment and winning
high-profile jury trials on behalf of industry-leading clients.
She has significant experience working on complex discrimination and wage-and-hour class actions for global leaders in the retail and technology sectors including Apple, The Gap, Genentech, Microsoft, Sears, Burlington Coat Factory, Gymboree, Spencer’s Gifts, Banana Republic, Old Navy, Williams Sonoma and Pottery Barn Kids, among others.
Most recently, Lynne led the trial team that obtained a complete defense verdict for Kleiner Perkins in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case that garnered intense international media scrutiny. Following 24 days of trial, a San Francisco jury rejected all of former partner Ellen Pao's claims that she was passed over for promotion and terminated because of her gender and complaints about discrimination. In naming Lynne “Litigator of the Week” for this victory, American Lawyer described her effective voir dire and how she “steadily poked holes in Pao’s testimony.” The Recorder called Lynne’s cross-examination “masterful” and Bloomberg reported that her “charismatic, intimidating oratory made her the trial’s breakout star.”
Additional Representative Actions:
- Class Actions. Represented large employers in wage-and-hour
class actions, including The Gap, Blockbuster and Burlington Coat Factory.
Bucking the legal tide, Lynne defeated class certification in statewide
wage-and-hour class actions for Banana Republic, Old Navy, Pottery Barn Kids and
Burlington Coat Factory and has had other cases dismissed on summary judgment
and other grounds.
- AMD. Obtained a quick defense verdict in the high-profile trial of
Maghribi v. Advanced Micro Devices on behalf of AMD. Plaintiff, a senior
Arab Muslim executive, sought $200 million in lost salary, bonuses and stock
options and emotional distress damages, punitive damages and attorneys’ fees,
alleging post-September 11th discrimination. After a several-week trial, the
jury returned in less than two hours with a defense verdict.
- Morgan Stanley.
Obtained dismissal of unlawful deduction class
claims in New Jersey multidistrict litigation, addressing issues of
long-standing concern to the financial services industry.
- Inland Container Corp. Obtained direct verdicts for Inland Container
in Thrush v. Inland Container Corp., a case involving allegations of
disability discrimination, intentional infliction of emotional distress and
related claims after several weeks of a federal jury trial.
- City of Tracy. Obtained directed verdicts for the City of Tracy and
individual defendants in Vizza v. The City of Tracy on all nine claims
brought by the City’s former Director of Public Works, including constitutional
and common law claims, after five days of jury trial in federal court.
- IBM. Obtained a defense verdict on all claims on behalf of IBM in
Pi v. IBM, a hard-fought jury trial alleging claims of retaliation for
sexual harassment complaints.
- Varian. Obtained dismissal of all wrongful discharge claims asserted
by plaintiff David Kern in Kern v. Varian Associates, Inc., and obtained
a verdict of more than $3.5 million on Varian’s cross-claim for trade secret
theft. Mr. Kern served time in a federal prison for that theft.
The Private Attorneys General Act of 2004 (“PAGA”) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees and the state of California for Labor Code violations. In January, Governor Brown submitted a budget proposal that sought greater oversight of PAGA claims and amendments to the PAGA statute. On June 15, 2016, the California Legislature approved Governor Brown’s budget proposal which included significant amendments to PAGA (Labor Sections 2698-2699.5). SB 836 went into effect on June 27, 2016 and provides:
- The Labor and Workforce Development Agency (“LWDA”), the agency which coordinates workforce programs by overseeing seven major departments that serve California businesses and workers now has 60 days to review a notice under Labor Code § 2699.3(a). Prior to the amendments, the LWDA had 30 days to review. Additionally, the time for the LWDA to investigate a claim is extended to 180 days (it was 120 days);
- A Plaintiff cannot file a civil action until 65 days after sending notice to the LWDA (previously 33 days);
- The LWDA must be provided with a copy of any proposed settlement of a PAGA action at the time it is submitted to the court;
- A copy of the court’s judgment and any other order that awards or denies PAGA penalties must be provided to LWDA;
- All items that are required to be provided to the LWDA must be submitted online, including PAGA claim notices and employer cure notices or other responses;
- A $75 filing fee is required for a new PAGA claim notice and also for any initial employer response to a new PAGA claim notice. The filing fee may be waived if the party on whose behalf the notice or response is filed is entitled to in forma pauperis status; and
- When a plaintiff files a new PAGA lawsuit in court, a filed-stamped copy of the complaint must be provided to LWDA. This requirement only applies to cases in which the initial PAGA claim notice was filed on or after July 1, 2016.
Although SB 836 is a modest version of the Governor’s original proposal, employers should still expect to see significant changes in litigating PAGA claims. Providing the LWDA additional time to review and investigate PAGA claims should help to weed out frivolous claims that employers incur significant costs to defend in court. However, the LWDA is likely to become more active in reviewing proposed PAGA settlements, which could complicate the settlement process and lead to higher litigation costs if the LWDA chooses to intervene. Additionally, employers can expect to see delays in the LWDA’s ability to process online submissions given that no online filing or payment systems have been developed. In the interim, the LWDA requests that all required online filings be sent to PAGAfilings@dir.ca.gov and that all payments be mailed to the Department of Industrial Relations.
Following the excitement of the same-sex marriage decision by the U.S. Supreme Court on June 26th, the question remains how much the Opinion may impact Title VII employment discrimination claims. Based on our reading of the Obergefell v. Hodges decision, and the many states that have passed legislation protecting employees from sexual-orientation discrimination, we recommend that employers revisit and update their anti-discrimination policies.
With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees’ out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line. READ MORE
After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013). READ MORE
Earlier this month in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the U.S. Supreme Court held that it is permissible for defendants to “pick off” plaintiffs in FLSA collective actions. In jurisdictions that hold that an unaccepted offer of judgment fully satisfies and renders moot a plaintiff’s individual claim, a defendant can moot a collective action brought under the FLSA by simply tendering the named plaintiff a Federal Rule of Civil Procedure 68 offer of judgment. READ MORE
In the last several years, the enforcement of agreements to arbitrate disputes, whether between businesses or between businesses and their employees, has become a hotly contested issue in the courts. The U.S. Supreme Court issued two significant pronouncements in this area in the past few years. In 2010, in Stolt-Nielsen S.A. v. Animalfeeds International Corp., 130 S.Ct. 1758 (2010), the Court held that where an agreement to arbitrate is silent on the question of whether a plaintiff can arbitrate her claims on behalf of a proposed class of similarly situated individuals (similar to a class action lawsuit), class arbitration is not permissible. Last year, in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Court held that (1) under the Federal Arbitration Act (“FAA”), arbitration agreements are to be enforced “according to their terms”; and (2) state law rules prohibiting the use of “class-action waiver” provisions, in which a party waives his or her right to arbitrate claims on a class basis, are preempted by the FAA. Together, these cases stand for the fundamental proposition that the parties to arbitration agreements should be bound by the clear terms of such agreements, especially with respect to class arbitration issues. READ MORE