Lynne Hermle

Partner

Silicon Valley


Read full biography at www.orrick.com
American College of Trial LawyersLynne Hermle, a Silicon Valley employment partner, has a long track record of winning high-profile jury trials on behalf of industry-leading clients, defeating class certification and obtaining summary judgment.

She has significant experience working on complex discrimination and wage-and-hour class actions for global leaders in the retail and technology sectors including The Gap, Genentech, Microsoft, Sears, Burlington Coat Factory, Gymboree, Spencer’s Gifts, Banana Republic, Old Navy, Williams Sonoma and Pottery Barn Kids, among many others.

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. 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.”

Following Pao, Lynne secured a complete defense verdict for SpaceX in an $8 million gender discrimination and retaliation suit. The Daily Journal called the outcome “another triumph for Hermle,” observing that her “string of successes for tech clients fighting off gender harassment and discrimination claims got longer.” The publication also pronounced Lynne to be “arguably the most feared employment defense attorney in California.”

In recognition of these successes and career trial work, Lynne was inducted into the American College of Trial Lawyers in 2017.

Additional Representative Actions:

  • SpaceX. Secured a defense verdict in Los Angles Superior Court in a $6 million whistleblower lawsuit filed by a former technician. This trial performance earned her American Lawyer's "Litigator of the Week," June 2017. In addition, Lynne secured a defense verdict in a separate trial regarding sexual harassment in 2016. 
  • 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.

Posts by: Lynne Hermle

No Trial Needed: Ninth Circuit Confirms Summary Judgment Appropriate Where Discrimination Plaintiff Can’t Rebut Legitimate Business Reasons

Employers faced with discrimination claims must determine if summary judgment is a viable means to dispose of those claims. A recent Ninth Circuit decision provides some additional ammunition for employers moving for summary judgment going forward.

In affirming summary judgment on August 16, 2017, the Court in Merrick v. Hilton Worldwide, Case No. 14-56853, 2017 WL 3496030, held that “context is key when a plaintiff alleges age discrimination based on circumstantial evidence” and, on the facts before it, affirmed summary judgment for the employer. Id. at *8. Plaintiffs fond of quoting the standard for summary judgment articulated in Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) – which held that a plaintiff in an employment discrimination case needs to produce “very little evidence” to defeat summary judgment – will need to contend with the more nuanced picture of summary judgment requirements that Merrick paints.

In Merrick, Plaintiff alleged that his employment was terminated in violation of the California Fair Employment and Housing Act (“FEHA”) when he was laid off as part of a reduction-in-force, allegedly because of his age.  After concluding that Plaintiff had established a prima facie case and that Hilton produced evidence that it terminated Plaintiff’s employment for legitimate, non-discriminatory business reasons, the Court found that Plaintiff failed to produce sufficient evidence to allow a jury to conclude that age was a “substantial motivating factor” in the decision, i.e., that Hilton’s reasons for termination were false or the true reason for the termination decision was discriminatory.  Specifically, “the evidence as a whole [was] insufficient to permit a rational inference that the employer’s actual motive was discriminatory” considering the substantial evidence the employer tendered supporting the business justification for his selection:

  • lost profits during a preceding economic downturn
  • a series of layoffs over several years, the overall age of the workforce
  • the fact that Plaintiff survived previous layoffs despite having also been a member of a protected class at the time of those layoffs, and
  • the business reasons for selecting his position for elimination.

Faced with this evidence, the Merrick court emphasized that a plaintiff “must do more than establish a prima facie case and deny the credibility of [the employer’s] witnesses”; if she does nothing more, summary judgment should be granted. Merrick, 2017 WL 3496030, at *5.

In affirming summary judgment, the Merrick court cited to a line of Ninth Circuit cases – Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000), Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996); and Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994) – that had affirmed summary judgment where a plaintiff failed to adduce adequate proof of pretext.  This contrasts with the Chuang line of cases that could be read to suggest that less is required of plaintiff.

The Merrick decision thus underscores that the summary judgment standard for discrimination cases in the Ninth Circuit is not as lax as some plaintiffs may suggest. Merrick‘s analysis was predicated on the familiar McDonnell-Douglas burden-shifting framework—which the Court held applied to state law discrimination claims under FEHA just as it would to federal Title VII claims—and thus has implications for any claims in federal court analyzed under that framework.

California Enacts New PAGA Amendments as Part of Governor’s Budget Bill

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.

READ MORE

The Gay Marriage Decision: Support for Title VII Employment Discrimination Claims?

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.

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Oh, F*©k No: Administrative Law Judge Rules that Employees’ Expletive-Laced Facebook Posts are not Protected Under the National Labor Relations Act

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

Court Strikes Down Proposed Class of Female Wal-Mart Employees – Again!

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

“Picking Off” Plaintiffs in FLSA Collective Actions: Genesis HealthCare Corp. v. Symczyk

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

Supreme Court To Clarify Key Issues Regarding The Permissibility Of Class Arbitration

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