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Cutting-Edge Employment Law Issues 2017: The California Difference


Speaker(s): Aaron L. Agenbroad, Andrew P. Lee, Catha Worthman, David A. Lowe, Hon. Edward M. Chen, Hon. William F. Highberger, Jason C. Marsili, Joseph C. Liburt, Julie A. Su, Laura L. Ho, Patricia K. Gillette, Roberta L. Steele, Timothy G. Williams, Timothy J. Long
Recorded on: Sep. 11, 2017
PLI Program #: 181016

Joe Liburt is a Silicon Valley partner in Orrick’s Employment Law & Litigation Group. Joe has more than 20 years of experience representing standout companies such as Apple, Sears and Microsoft in their most challenging and complex employment matters. Chambers USA has consistently recognized Joe as a top employment litigator.

Joe was trial counsel on the team that obtained a complete defense verdict in Pao v. Kleiner Perkins, the high-stakes gender discrimination and retaliation case that garnered intense national media scrutiny. Following six weeks of trial and three days of deliberations, a state court jury in San Francisco rejected all of plaintiff’s claims that she was passed over for promotion because of her gender and complaints about discrimination.

Class Actions. Joe has extensive class action expertise representing employers in retail, technology and manufacturing including Sears, Apple, International Paper, Juniper Networks and Home Depot. Joe has defeated class certification or obtained dismissal or summary judgment on the full range of wage and hour claims.

Individual Claims. Joe represents a broad range of employers in all types of cases. He has defended employers such as Apple, Microsoft, Genentech, NVIDIA, and the National Basketball Players Association in high-visibility matters.

ERISA & Benefits Litigation. Joe has litigated various ERISA and state law benefits claims for plans and sponsors including Oracle, Robert Half International, PwC, and the University of California.

Examples of Joe’s representative matters include:

Apple. Joe has represented Apple for 20+ years and successfully defended various single-plaintiff and class action cases.

Sears. Joe has repeatedly defeated class certification in wage-and-hour class actions for Sears. In another case, Joe obtained early dismissal of an assistant manager exemption misclassification class action through the purchase of the named plaintiff’s claims in bankruptcy court. In 2014, Joe persuaded two federal courts to reject the California Supreme Court's Iskanian decision and compel individual arbitration of representative PAGA claims.

Genentech. Joe was trial counsel in Cefalu v. Genentech, which resulted in a jury verdict in Genentech’s favor on all claims, including disability discrimination, reasonable accommodation, interactive process, CFRA retaliation, and bonus wages.

Twitter. Joe recently obtained summary judgment on 11 out of 12 claims in a case seeking RSUs on substantial compliance and other contractual and equitable theories. 

Oracle. Joe defended Oracle in numerous ERISA arbitrations regarding change-in-control severance plans in which employees sought change-in-control benefits after Oracle acquired Siebel Systems.

Attorney-plaintiff cases.  Joe has recently defended several individual discrimination, wrongful termination and whistleblower claims brought by former in-house attorneys.


The Daily Journal has repeatedly included Mr. Lowe on its prestigious list of the “Top Labor and Employment Lawyers” in California, and he has received California Lawyer magazine’s “Attorney of the Year” (“CLAY”) award by for his “extraordinary achievement” in employment law.  He is listed in Best Lawyers in America, which recognized him as “Lawyer of the Year” for Employment Law for 2016.  In addition, Law & Politics magazine has recognized him as a “Northern California Super Lawyer” each year from 2006 to the present and as one of the “Top 100” lawyers in Northern California.  He holds LexisNexis Martindale-Hubbell’s highest “AV” Peer Review Rating for preeminent attorneys and an AVVO rating of 10 out of 10.

Mr. Lowe is one of a handful of employment lawyers in California who have won high profile trials in both individual and class action cases.  Most recently, Mr. Lowe was lead trial counsel in two jury trials in which the firm’s clients recovered millions of dollars.  A jury found that the Diocese of Sacramento defamed our client and fired him for whistleblowing, resulting in a $4 million judgment.  Six months later, in a disability discrimination case, a Kern County jury awarded our client, a blind physical therapist, $1.19 million in lost wages and emotional distress damages.  The case settled while the jury was deciding the amount of punitive damages to award. 

In addition to representing employees, Mr. Lowe is frequently retained as a neutral mediator to help other lawyers and their clients resolve difficult employment disputes.  In that role, he has helped settle multi-million dollar class actions, individual employment cases, and litigation involving a wide variety of issues, including insurance coverage issues.  Mr. Lowe received his mediation training at the highly regarded Straus Institute for Dispute Resolution at Pepperdine University School of Law and “on-the-job” with his colleague Mark Rudy, with whom he has mediated numerous complex individual and class action cases. 

Mr. Lowe specializes in international employment cases, complex litigation, and executive severance negotiations, as well as litigation and negotiation of individual employment law claims, including claims for wrongful termination, harassment, discrimination, whistleblower retaliation, unpaid commissions and bonuses, breach of contract and violation of the WARN Act, military leave, family/medical leave and wage and hour laws.

Mr. Lowe is one of four authors—with Justice Ming W. Chin, Justice Rebecca A. Wiseman (ret.) and Judge Consuelo Maria Callahan—of The Rutter Group “Employment Litigation” California Practice Guide and is Chapter Author, “Litigation of International Employment Disputes,” International Labor and Employment Laws, among other publications.

Mr. Lowe served on the Board of Directors of the Bar Association of San Francisco (“BASF”), and as Chair of the Labor and Employment Section (2010-2012) and a member of the Judiciary and Independence of the Judiciary Committees.  He also Co-Chaired the International Bar Association Equality and Discrimination Law Committee and serves on the IBA Class Action Task Force.

Mr. Lowe also sits on the Board of Directors of the Lawyers Committee for Civil Rights in the Bay Area and chairs its Nominations and Membership Committee.  He is also a member of the Labor and Employment Section of the State Bar of California, California Employment Lawyers Association, the National Employment Lawyers Association and Bay Area Lawyers for Individual Freedom.  He has also served on the Board of Directors of the Berkeley Law Foundation (Chair, 1996-2000) and the Pride Law Fund (Secretary, 2001-2006).

Mr. Lowe regularly speaks on employment law issues for the International Bar Association, the American Bar Association, the State Bar Labor and Employment Section, the Rutter Group, the American Conference Institute, the Practicing Law Institute and others.


Andrew P. Lee is a partner at Goldstein, Borgen, Dardarian & Ho, a plaintiffs’ public interest class action law firm.  Mr. Lee’s practice focuses on class and complex litigation.  Mr. Lee is an experienced employment lawyer, having litigated wage and hour, employment discrimination, and background check class actions.  He is also a member of the firm’s disability rights practice, litigating systemic injunctive relief class actions against government entities and large business organizations on behalf of persons with disabilities. 

From 2012 to 2015, Mr. Lee was one of the authors of the California chapter of Wage and Hour Laws, A State-by-State Survey (BNA).  He has been selected by Super Lawyers as a Northern California Rising Star from 2015 to 2017. He is a graduate of U.C. Berkeley and U.C. Hastings College of the Law.


Catha Worthman is a founding partner at Feinberg, Jackson, Worthman & Wasow LLP. Through her public interest practice involving class actions, multi-plaintiff cases, and individual litigation, Catha advocates for the rights of workers, retirees, and people with disabilities. She has litigated cases involving the full range of ERISA and employee benefits issues, including breach of fiduciary duty, ESOP, pension, healthcare and long-term disability benefits, as well as wage and hour and disability rights cases.  Her work has helped to recover unpaid wages and benefits for employees across a range of industries, including healthcare, transportation, fast food, and construction.

Catha often partners with nonprofit social justice organizations and labor unions in impact litigation and policy strategies. Presently, she is co-counsel with leading civil rights advocates in a case challenging discrimination against Latinos on Medi-Cal. She served as co-counsel in National Association of the Deaf v. Netflix, obtaining a favorable decision of first impression that ultimately resulted in Netflix agreeing to make its streaming video 100% accessible through closed captioning.

Catha writes and speaks frequently on her issues of expertise, including civil procedure, ERISA and other employee benefits issues, and wage and hour rights. An effective appellate advocate, she has successfully argued in the Fourth Circuit and briefed several appeals in California and federal courts.

Before joining the firm, Catha was a shareholder at Lewis, Feinberg, Lee & Jackson, P.C. Previously, she served as a law clerk to Judge William A. Fletcher of the Ninth Circuit Court of Appeals and worked for the Health Systems Division of the Service Employees International Union (SEIU).

She is Vice Chair of the ABA Tort Trial & Insurance Practice Section, Employee Benefits Committee; a member of the Board of the Directors of Advancing Justice – Asian Law Caucus, and of the Litigation Committee of Equal Rights Advocates.

Her publications include Rewrite and Contributing Author, Sacher et. al., Employee Benefits Law (BNA Books 2013); “Civil Penalties Under the California Private Attorneys General Act (PAGA),” Employment Damages and Remedies (CEB 2016); and with Byron Walker, “Have You Got What It Takes For Federal Court?:  CAFA’s Amount in Controversy,” Class Action Fairness Act: Law and Strategy (ABA 2013).


Jason C. Marsili is a partner at Rosen Marsili Rapp LLP in Los Angeles.  His practice focuses on class and collective wage and hour litigation on behalf of both unrepresented and unionized employees involving violations of the FLSA and state law.  Additionally, Mr. Marsili handles individual matters concerning medical leaves, employment discrimination, sexual harassment, and wrongful termination, as well as labor-management relations and executive compensation.  He holds a Master’s Degree in Dispute Resolution from the Straus Institute for Dispute Resolution and teaches negotiation and mediation advocacy courses at USC School of Law.  Mr. Marsili is an active member of both the American Bar Association (ABA) Section of Labor & Employment Law and the Los Angeles County Bar Association (LACBA) Labor & Employment Law Section.  He currently serves as a Co-Chair of the ABA Federal Labor Standards Legislation Committee.  He also serves as an officer on the Executive Committee for the LACBA Labor & Employment Law Section and is a member of the Board of Governors for the Italian American Lawyers Association.


Judge Highberger has been assigned to the Los Angeles Superior Court Complex Civil Litigation Program since March 2008.  His docket primarily consists of class actions, complex civil cases, Judicial Council Coordinated Proceedings involving multiple tort claims from around the state and the nation, and other types of complex civil litigation.  The substantial majority of his docket since 2013 has been wage-and-hour class actions.  He and his colleagues in the Los Angeles Superior Court Complex Civil Litigation Program have one of the largest wage-and-hour class action dockets in the entire nation.  He routinely deals with contested motions for compel arbitration in this context and frequently teaches other judges about this topic in CLE programs.  He also routinely hears motions for approval of wage-and-hour class action settlements and other class-action settlements.

While handling various mass-tort cases, he has held joint court sessions with the United States District Judge handling the counterpart MDL case involving In re Incretin Mimetics.  He has also worked in cooperation with the Court of Common Pleas Judge in Philadelphia to facilitate the handling of overlapping mass-tort claims involving the prescription drug Risperdal®.

He has been a judge since September 1998.  He is a Fellow of the College Of Labor And Employment Lawyers, a Member of the American Law Institute and an Adviser to the ALI’s recently completed Restatement of the Law, Employment Law.  He is also an Adviser to the ALI’s current project to draft a Restatement of the Law, Liability Insurance.

Before his appointment to the court in September 1998, he was a partner in the labor and employment practice of Gibson, Dunn & Crutcher LLP in Los Angeles, CA and Washington, DC, where he handled both traditional labor-management disputes and individual and class litigation in state and federal court.  He has been admitted to practice in California, Washington, D.C., and New York.  He is a Member of the American College of Business Court Judges.  He is a 1975 graduate of Columbia Law School, where he was an Editor of the Columbia Law Review and a James Kent Scholar, and a 1972 graduate of Princeton University.


Julie A. Su is a nationally recognized expert on workers' rights and civil rights who has dedicated her distinguished legal career to advancing justice on behalf of poor and disenfranchised communities. A MacArthur Foundation “Genius,” Su was appointed by Governor Jerry Brown and assumed the position of California Labor Commissioner in April 2011, overseeing over 500 staff in 18 offices across the state. A report on her tenure released in May 2013 found that her leadership has resulted in a renaissance in enforcement activity across the entire Division and record-setting results. In 2014, Su launched the “Wage Theft is a Crime” multi-media, multilingual campaign to reach out to low-wage workers and their employers to help them understand their rights and feel safe speaking up about labor law abuses. It is the first statewide campaign of its kind.

Prior to her appointment as Labor Commissioner for the State of California, Su served as the Litigation Director at Advancing Justice LA, the nation’s largest non-profit civil rights organization devoted to issues affecting the Asian American community. In her 17 years as a civil rights lawyer, Su brought landmark lawsuits resulting in millions of dollars for low-wage workers and policy changes in California and the United States protecting immigrant victims of crime and human trafficking.

Her numerous awards include the Reebok International Human Rights Award (1996); one of four “Pioneers in Women’s History” in an official proclamation by President William Jefferson Clinton (1997); Gruber Foundation International Women’s Rights Prize (2006); a California Rural Legal Assistance Foundation “Champion of Workers Rights” and UC Berkeley Labor Center “Labor Hero” (2013). Frequently named to top-lawyer lists such as the Daily Journal’s “Top 75 Women Litigators” in California and California Lawyer’s “Super Lawyers,” she was the first Labor Commissioner to be included among the Daily Journal's “Top 75 Labor and Employment Lawyers” and has also been named one of the 50 most noteworthy women alumni of Harvard Law School and one of the 100 most “influential” people in Los Angeles in Los Angeles Magazine.

Su has taught at UCLA Law School and Northeastern Law School. She is a graduate of Stanford University and Harvard Law School and began her career with a Skadden Fellowship. Su speaks Mandarin and Spanish.


Laura L. Ho joined Goldstein, Borgen, Dardarian & Ho in 1998 and has been a partner since 2005. Her current practice focuses on California and federal wage and hour class and collective actions. Ms. Ho has also represented non-profit organizations as amici curiae in a number of cases affecting California employees in the California Court of Appeal and Supreme Court, and Ninth Circuit Court of Appeals.  She also regularly gives presentations on the subjects of California and federal wage and hour class and collective actions. Ms. Ho speaks Mandarin Chinese.

Ms. Ho received California Lawyer magazine’s California Lawyer of the Year Award (CLAY) in 2009 for her achievements in employment law, was named Best Lawyer’s 2014 Lawyer of the Year for Oakland in Litigation—Labor and Employment, and is regularly recognized as a Northern California Super Lawyer.


Pat Gillette is one of the country’s leading experts and most sought after speakers on diversity and equality.  Rated as a top employment litigator and trial lawyer by Chambers and other organizations for 40 years and as a leader and rainmaker in her firms, Ms. Gillette spent her litigating employment cases and advices Fortune 500 clients on critical and sensitive business issues.  At the end of 2015, she resigned from her firm to pursue her passion for empowering women through keynote speaking and writing.  She was also invited to join JAMS in San Francisco and she now spends some of her time mediating employment cases.

Ms. Gillette’s presentations and writings focus on helping attorneys succeed in the high powered, fast paced business environment of today.   Relying on research studies she commissioned, her own experiences, and her charismatic style, Ms. Gillette is able to inspire audiences from law firm managing partners, to General Counsels, to firm leaders and associates to think positively and practically about how they can enhance their legal careers and advance diversity in the legal profession.

In recognition of her work to advance diversity in the profession, she has received several awards including the ABA Golden Hammer Award, the California Women Lawyers Association’s Fay Stender Award, the Transformational Leadership Award as one of the Top Women Rainmaker, and the Barristers Association of San Francisco Award of Merit. 

Ms. Gillette is the co-founder of the Opt-In Project, a nationwide initiative focused on changing the structure of law firms to increase the retention and advancement of women. Ms. Gillette has been a Commissioner on the ABA Commission on Women in the Profession, a member of ABA’s Gender Equity Task Force, Co-Chair of the BASF No Glass Ceiling Initiative, and she serves on non-profit boards, including DirectWomen, which is dedicated to preparing women attorneys to serve on the boards of public companies and Equal Rights Advocates.

Ms. Gillette is the proud mother of two successful and enlightened sons and lives in Kensington, California with her husband of 42 years.  She has served as an elected official of her town and is active in political and community organizations and activities.


Tim Long leads a vibrant employment law practice representing clients throughout the state and beyond from his offices in Los Angeles and Sacramento. The Daily Journal has selected Tim as one of the top labor and employment lawyers in California. 

 

Tim has developed a national reputation litigating complex employment matters. Tim has handled virtually every type of employment matter during his career. He has acted as lead counsel in numerous class, collective and representative actions, and advised on dozens more.

 

Mr. Long is an effective litigator, both at the trial court and appellate level. Tim has tried a number of cases, and is one of the few lawyers who has tried to verdict an employment class action, obtaining a complete defense verdict on behalf of a major. He went on to protect the verdict on appeal. Tim has appeared before several appellate courts, including the California Supreme Court and California Courts of Appeal, the Ninth Circuit and the Washington State Supreme Court. 

 

In addition to having presented on virtually every employment law-related topic over the course of his career, Tim has authored numerous publications. For example, Tim is the Editor and a chapter author of the PLI Employment Law Yearbook. The Yearbook is the definitive treatise for employment law practitioners around the country, and is updated annually.


Roberta L. Steele is the Regional Attorney for the San Francisco District Office of the Equal Opportunity Commission (EEOC).  She is responsible for the agency’s litigation program to enforce the federal anti- discrimination laws in Northern California and Nevada, Oregon, Washington, Alaska, Montana and Idaho.   Before joining the EEOC, Ms. Steele was a partner at the law firm then known as Goldstein, Demchak, Baller, Borgen & Dardarian (Oakland, CA), where she spent 17 years litigating plaintiffs’ employment discrimination and wage and hour class and collective actions nationally. She also served as the Program Director for the National Employment Lawyers Association (NELA) for two years directing the organization’s broad range of continuing legal education and advocacy initiatives, including NELA’s Amicus and Judicial Nominations Programs.  Ms. Steele was an Executive Editor for Lindemann & Grossman, Employment Discrimination Law, 5th ed. (2013). She was a member of the Board of Directors of Equal Rights Advocates for eight years, including serving on the Executive Committee and as Chair of the Litigation Committee. Ms. Steele has been active in the American Bar Association’s Labor & Employment Law Section for many years. She is a frequent lecturer and panelist on subjects relating to the fair employment and wage and hour laws, class and collective actions, and litigation practice and procedure. Ms. Steele received her J.D. from Case Western Reserve University School of Law, Cleveland, OH, in 1993, where she was an Associate Editor and Notes Editor for its Law Review. In 1990, Ms. Steele graduated summa cum laude with a B.A. in English from the University of Massachusetts, Boston, MA.


Timothy G. Williams is a partner at Pope, Berger, Williams & Reynolds, LLP. He has worked in the labor and employment field since 1994. As an attorney since 1996, Tim specializes in employment litigation, counseling, training and compliance. He has significant experience in individual and class action wage-and-hour cases, as well as in cases involving harassment, discrimination, retaliation, wrongful termination, and a variety of leave issues. Tim’s work in litigated matters extends throughout federal and state courts in California, and in administrative proceedings. Tim also annually authors and updates employment law books, treatises and practice guides for attorneys, and speaks at seminars to train other employment lawyers on advanced practice skills.

Tim received his Bachelor’s Degree from the University of Southern California in Los Angles, California in 1993, and earned his J.D. from South Texas College of Law in Houston, Texas in 1996. Tim joined Pope & Berger in 1999, became a partner in Pope, Berger & Williams, LLP in 2003, and since January 1, 2015, continues as a partner in Pope, Berger, Williams & Reynolds, LLP. Tim is a past Co-Chair of the San Diego County Bar Association’s Labor & Employment Law Section, and has served in a supporting role with the State Bar of California Labor & Employment Law Section. He is an active member of the American Bar Association, the State Bar of California, the San Diego County Bar Association, and Lawyers Club of San Diego. Tim also volunteers through law student and attorney mentor and volunteer programs, as well as local youth sports organizations.

Tim was awarded an “AV Preeminent” peer review rating by Martindale-Hubbell. He has been nominated and selected for numerous employment lawyer awards, as well as selected as a “Super Lawyer” each year since 2009. In 2013, Tim was selected as a “Top Lawyer” in Labor & Employment law by San Diego Magazine, a “Top Rated Lawyer” in Labor & Employment Law by American Lawyer Media, and a “Top Rated Lawyer” in Labor & Employment Law by Martindale-Hubbell.


Aaron Agenbroad's practice includes all aspects of labor and employment law, with a focus on representing corporate clients in complex labor and employment disputes. In the employment arena, his practice includes litigation of California wage and hour class actions and FLSA collective actions, California discrimination cases under FEHA and CFRA, and federal discrimination cases, including ADEA, FMLA, ADA, and Title VII claims. Aaron has experience with all phases of litigation and has tried multiple cases to verdict. He also regularly counsels employers in employment matters, including reductions in force, employee terminations, FMLA and CFRA issues, and EEOC and FEHA charges.

In his traditional labor work, Aaron's experience includes representation of management in labor arbitrations in the telecommunications, health care, refining, and manufacturing industries. He also has represented clients in NLRB and PERB unfair labor practice proceedings, led collective bargaining negotiations, and worked in defending union organizing campaigns. His NLRB election experience includes successful results in certification and decertification elections involving retail facilities, newspapers, casinos, and health care institutions.

Recent successes include full defense verdicts as lead counsel in trials on behalf of R.J. Reynolds and the Port of Oakland, the resolution of three statewide wage and hour class actions on behalf of Chevron Stations, and leading successful collective bargaining negotiations in the health care, shipping, and gaming industries. Representative clients include Alameda Health System, AstraZeneca, IBM, Macy's, McDonald's, R.J. Reynolds, United Airlines, and Verizon Wireless.

Aaron is Partner-in-Charge of the Firm's San Francisco Office. 

EXPERIENCE HIGHLIGHTS

Chevron obtains summary judgment in California FEHA age discrimination case

Alameda Health System prevails on grievance regarding independent contractor status of anesthesiologists.

R. J. Reynolds wins full defense verdict after trial of race discrimination and wrongful termination claims

HONORS & DISTINCTIONS

Legal 500 US (2012-2015) — recommended attorney: labor & employment litigation and labor-management relations

Education

Georgetown University (J.D. 1997); University of Washington (B.A. 1992)

Bar Admissions

California and U.S. District Courts for the Central, Eastern, Northern, and Southern Districts of California


Judge Chen is a 1979 graduate of the University of California, Berkeley School of Law.  He served on the California Law Review and graduated Order of the Coif.  After clerking for U.S. District Judge Charles B. Renfrew and U.S. Court of Appeals Chief Judge James R. Browning, he practiced as a litigation associate with the law firm of Coblentz, Cahen, McCabe & Breyer.  He joined the legal staff of the ACLU Foundation of Northern California in 1985 where he served until joining the Court in 2001.  From 2001 to 2011, Judge Chen served as a federal Magistrate Judge for the Northern District of California.  Judge Chen was first nominated by President Obama to the U.S. District Court on August 6, 2009.  After a lengthy confirmation process, Judge Chen was confirmed by the U.S. Senate in May 2011.  In addition to his judicial duties, Judge Chen has participated and led judicial seminars on mediation, employment, intellectual property, civil rights, access to justice, and case management.  He has also led judicial seminars in Mexico, Malaysia, India, and Trinidad on case management, alternative dispute resolution and digital copyrights, and has served as a member of court committees dealing with access to justice and judicial education.  Judge Chen has served on the Ninth Circuit’s Task Force and Self-Represented Litigants and chaired its Implementation Committee.  He currently serves on the Circuit’s Fairness Committee and on the FJC’s District Judges Education Advisory Committee.