Civil Rights, Human Rights, Workplace Rights
Lieff Cabraser’s Work for Civil Rights
Lieff Cabraser has an entire practice group dedicated to its clients’ civil rights in the workplace. In addition, Lieff Cabraser has a long and deep commitment to pro bono cases in support of diversity, equity, and social justice. On an on-going basis, Lieff Cabraser participates in pro bono representation through the Justice & Diversity Center (JDC) of the Bar Association of San Francisco, including in its Eviction Defense Project helping to prevent displacement and homelessness in San Francisco. Every summer, Lieff Cabraser also participates in JDC’s Homeless Advocacy Project as part of the firm’s summer associate program client work. Lieff Cabraser also takes on special pro bono projects, including the work listed below.
Supporting the Most Economically Vulnerable Americans
CARES Act Prison Case: Scholl v. Mnuchin, et al., No. 4:20-cv-05309-PJH (N.D. Cal.). Lieff Cabraser and the Equal Justice Society filed a lawsuit challenging the IRS and U.S. Treasury Department’s improper withholding of CARES Act stimulus funds from over 1.5 million incarcerated Americans and their families. In October 2020, Judge Phyllis Hamilton of the federal Northern District of California certified a class and entered a permanent injunction stopping the government misconduct, ruling the policy of excluding incarcerated people from stimulus benefits was “arbitrary and capricious.”
In the aggregate, the judgment won for our clients may be the largest recovery on behalf of a purposefully disenfranchised group through a single lawsuit ever, securing over $1.5 billion in economic assistance to date.
Overturning a Wrongful 60-Year False Conviction in New Orleans
The Yutico Briley case. Along with University of San Francisco Law Professor Lara Bazelon, Lieff Cabraser partner Robert J. Nelson represents Yutico Briley, who was convicted in 2013 of armed robbery, stealing $102 at gunpoint. Yutico was 19 years old at the time, and received a sentence of 60 years without the possibility of parole, so the sentence was effectively a life sentence.
From the moment of his arrest, Mr. Briley professed his innocence. He had an alibi, that he was in a hotel room across town during the time of the robbery. But his lawyers bungled the request for the video camera evidence from the hotel, and it was never recovered. Nor did they interview the person Yutico was with at the time of the robbery. Nor did trial counsel analyze his cell phone records that would have revealed his location. The white victim’s description did not match Yutico: the victim said the assailant was a dark skinned African American, thin build, and 5 ft. 10 inches. Briley is light complected, 5 ft. 8, and stocky, 185 pounds with a size 36 inch waist, and had facial hair. So basically the primary match was that Yutico was an African American male and wore a hoody. And no alibi defense was presented at trial.
The State’s case was weak, consisting of a cross-racial (white victim, black suspect) show-up identification. A show-up identification is different from a line-up identification because in a show-up there is only one suspect to choose from, and during this show-up Yutico was shackled at the police station. Yutico’s trial lasted all of one afternoon, and was bungled in many other ways by these lawyers, all detailed in our very lengthy petition for post conviction relief.
The new DA made the following recommendation: “After extensive review, it appears that Mr. Briley’s case was a wrongful armed robbery conviction based on a show-up identification by a single white witness who subsequently expressed uncertainty as to the accuracy of his identification. We believe his case demonstrates multiple failures of the criminal legal system that have been far too common in the typically brief trials of young Black men in Orleans Parish. It is an injustice that needs to be rectified as promptly as possible.”
An extraordinary hearing was held March 18, where the judge agreed with the DA that Mr. Briley should be freed, after having served more than 7 years in prison for a crime he did not commit.
The judge was critical of the fact that Mr. Briley’s original lawyers accepted monies from him to do an investigation but never did any work, including not getting the video footage from the hotel where Mr. Briley actually was at the time of the robbery. She then focused on the original DA’s own misconduct, and criticized the office for not doing a serious investigation before charging someone with a crime that could result in a 60 year sentence: “[t]he State was in possession of transcripts of all those calls to his lawyer and could have very easily subpoenaed or called the hotel and just asked [for the footage]. It would have taken maybe 30 seconds to a minute to do that, and proceeding with basic indifference as to whether they were prosecuting the wrong person, when it would have been a routine matter to check, was unacceptable then, and it is definitely unacceptable now in this administration.”
The judge concluded: “The criminal legal system unquestionably failed Mr. Briley. It also failed the victim of this crime, and it failed the City of New Orleans.”
Yutico is now free, his conviction overturned, and starting his life anew. “Interestingly, when Lara and I met with the former DA and his chief assistants last summer, they advised us that they had carefully reviewed the file and that Mr. Briley had received all the process he was due,” noted Robert Nelson. “Likely the judge (now retired) who sentenced Yutico to 60 years in 2013 would have said the same. What a difference a new prosecutor and new judge made for this young man, and hopefully for NOLA going forward.”
Department of Education CARES Act Fund Misallocation Lawsuit
On September 4, 2020, United States District Judge Dabney L. Friedrich issued an Order granting summary judgment in favor of plaintiffs in the lawsuit filed on behalf of public school students from California, Georgia, Texas, and Virginia challenging an unlawful restriction imposed by US Department of Education and Secretary Betsy DeVos on over $16 billion in funds that Congress allocated to schools under the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) Act.
The Court found the Department of Education’s Interim Final Rule (forcing school districts to divert funds from low income students and public schools towards private schools) to be in direct contravention of the express textual mandate of Congress, as expressed in the CARES Act. Judge Friedrich’s Opinion noted that, “Because of this unlawful rule, public schools would have received insufficient funding to reopen safely or to provide remote learning for their students, jeopardizing the health and education of countless children.”
Earlier, on August 28, 2020, Lieff Cabraser filed an amicus brief in support of the plaintiff schools and students. Attorney Christopher Jordan, who spearheaded the firm’s effort, said “It was an honor to represent our amici school districts, both urban and rural, large and small, and the 350,000 students they serve in this crucial case. We are excited to know that school districts will receive the federal aid under the CARES Act they are lawfully entitled to and we hope this decision helps schools reopen safely and carry out their important goal of educating our youth.”
“We are very happy that in vacating the Department of Education’s rule, the Court has ensured that millions of low-income students and public schools will get the resources and support they need,” adds Lieff Cabraser associate Kartik S. Madiraju, who drafted and shepherded the brief through to filing. “This ruling is based on the clear textual mandate of Congress, and gives effect to the intent of our elected representatives.”
21-Day Racial Equity Habit Building Challenge
In February of 2020, Lieff Cabraser’s Employment Practice Group embarked on the 21-Day Racial Equity Habit Building Challenge founded by diversity expert, Eddie Moore, Jr. This project invites participants to develop their own syllabus of 21 short assignments (essays, podcasts, videos, etc.) to enhance their depth of understanding around the intersections of power, privilege, supremacy, equity, and race. Lieff Cabraser’s team developed and curated their syllabus to focus on the experiences of Black Americans, with the understanding that any 21-day project would necessarily only touch the surface of community experiences and opinions, and also would not be a substitute for learning about the separate histories, joys, and challenges of other communities of color. After completing the project, the Group was excited to share the syllabus firm-wide as an optional tool for all of Lieff Cabraser to expand awareness, compassion, and active engagement in the quest for racial equity.
Since then, the firm’s 21-day syllabus has been shared widely outside our firm, resulting in interest and outreach from General Counsels at some of the biggest companies in the US, top corporate diversity and inclusion professionals, opposing counsel from big law firms, top union leaders, and all variety of lawyers at our sister plaintiffs’ firms. We have also gratefully received feedback and ideas for more resources that we intend to incorporate into future learnings.
In addition, the governing Council of the ABA Labor & Employment Law Section has recently adopted our syllabus and urged its 20,000+ members to join the Section leadership in completing the same 21 assignments, starting in June 2020.
(Note: The 21-Day Racial Equity Habit-Building Challenge © is the registered copyright of America & Moore, LLC. 2014.)
Google Gender Discrimination Class Action
Lieff Cabraser lawyers Kelly M. Dermody, Anne B. Shaver, and Michelle Lamy and co-counsel represent the plaintiffs in a lawsuit over systemic and pervasive pay and promotion discrimination. On May 27, 2021, a California superior court judge issued an order certifying a class of nearly 11,000 former female Google workers who allege the tech giant engaged in systemic and pervasive pay and promotion discrimination against its female employees in California, at times paying women thousands of dollars less than their male counterparts. Filed by Lieff Cabraser and co-counsel under California’s newly amended equal pay law, the Google Gender Discrimination class action is breaking new ground in tech in particular as it seeks to address two pernicious practices – the under-leveling of women relative to comparable men at hire, and using candidates’ past salary information to determine their pay rate, a process thought to perpetuate inequity as women have historically been paid significantly less on average than men.
Members of the class include women who worked at Google in California over the past seven years and who were primarily employed as software engineers. “This is a significant day for women at Google and in the technology sector, and we are so proud of our brave clients for leading the way,” noted Lieff Cabraser partner Kelly M. Dermody, who represents the plaintiffs in the case. “This order shows that it is critical that companies prioritize paying women equitably over spending money fighting them in litigation.”
“Sanctuary Cities” Case Updates
On February 13, 2018, Lieff Cabraser filed an amicus brief on behalf of 56 U.S. cities and counties asking the Ninth Circuit Court of Appeals to uphold the U.S. District Court’s late 2017 nationwide injunction against the Trump Administration’s Executive Order targeting so-called “sanctuary cities” that threatened local governments with “defunding” if they failed to cooperate with Immigration & Customs Enforcement (ICE) to the administration’s satisfaction. Lieff Cabraser’s clients have been concerned that the use of local resources to detain residents for federal immigration purposes will drive immigrant communities further underground and harm public health and safety. This brief followed earlier briefs described below.
On January 18, 2018, Lieff Cabraser filed an amicus brief on behalf of the Human Rights Campaign, the Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, the National LGBTQ Task Force, and PFLAG in Janus v. American Federation of State, County and Municipal Employees, Council 31 et al. in the United States Supreme Court in support of the ability of public-sector unions to continue to collect “fair-share fees” from government employees as approved in the 1977 Abood case.
On January 2, 2018, a group of five Lieff Cabraser attorneys joined 300 prominent actresses, female agents, writers, directors, producers, and entertainment executives, as well as many other lawyers nationwide in the new “Time’s Up” initiative in a concerted effort to combat sexual harassment, discrimination, and abuse in the workplace. The initiative begins with a new legal defense fund, intended to aid less-privileged women in protecting themselves from sexual misconduct; proposals of legislation to penalize companies that allow persistent harassment and discourage the use of nondisclosure agreements for silencing victims; as well as an ongoing drive to reach gender parity at studios and talent agencies. Since November 2017, Lieff Cabraser has been working with the Washington ACLU to organize the amicus briefs in Does v. Trump, a case challenging the Executive Orders targeting travelers from predominantly Muslim countries. This case is pending in the Western District of Washington.
Establishing Jurisdiction in Out-of-State Cyber Threats Cases
On September 29, 2017, Lieff Cabraser secured a unanimous victory in the California Court of Appeal for a pro bono client who sought a restraining order against her ex-husband. The case, Hogue v. Hogue, resolved an issue of first impression in the California courts as to whether California may assert jurisdiction over an out-of-state defendant who makes cyber threats against a California resident. Lieff Cabraser worked with the non-profit organization, Family Violence Appellate Project.
On June 28, 2017, Lieff Cabraser and a coalition of 48 cities and counties across the U.S. filed an amicus brief in San Francisco federal court to support the cases filed by the County of Santa Clara and the City and County of San Francisco asking the federal courts to reject the Trump Administration’s efforts to dismiss cases seeking to halt the Executive Order threatening the withdrawal of federal funds from so-called “sanctuary jurisdictions,” explaining that the Executive Order is unconstitutional and that the public will suffer irreparable harm unless the court leaves its preliminary injunction in place. The brief followed earlier, similar amicus briefs in the cases from our firm in March of 2017. The cases, County of Santa Clara v. Trump, Case No. 5:17-cv-00574, and City and County of San Francisco v. Trump, Case No. 3:17-cv-00485, are currently pending before the Honorable United States Judge William H. Orrick. On November 20, 2017, Judge Orrick permanently blocked the Order attempting to cut federal funding from cities that restrict cooperation with U.S. immigration authorities. “President Trump might be able to tweet whatever comes to mind, but he can’t grant himself new authority because he feels like it,” the judge said in a statement.
Since April 2017, Lieff Cabraser has been representing four undocumented minors who entered the United States unaccompanied by an adult guardian. The firm is seeking asylum or other forms of visa admission that will protect the clients’ legal residency in the United States. Lieff Cabraser is working on this project with the non-profit organization Kids In Need of Support (KIND).
Improper Restrictions on Entering the U.S.
On February 16, 2017, Lieff Cabraser filed an amicus brief on behalf of Public Justice and the Impact Fund in Darweesh, et al. v. Trump, et al. in the United States District Court for the Eastern District of New York in support of the current stay on President Trump’s January 27, 2017 Executive Order restricting entry to the United States. Darweesh was brought by individuals who had been approved for entry into the U.S. (including for refugee status) but were detained at the border as a result of President Trump’s Order. The lead plaintiff is a man who served as an interpreter for the U.S. Army for 10 years, starting during the 2003 war in Iraq, and who — with his family — had been subjected to death threats as a result. Darweesh was the first case in which a judge issued a stay on the travel ban, and is different from the recent Seattle immigration case where a stay on President Trump’s ban was upheld by the Ninth Circuit because Darweesh is a class action filed on behalf of the affected individuals, while the Ninth Circuit Seattle case was brought by States.
Supporting the Muslim Community
In February 2017, a team of Lieff Cabraser lawyers provided pro bono research and litigation strategy assistance to the non-profit group Muslim Advocates, as Muslim Advocates prepared for a potential wave of Executive Orders targeting the Muslim community.
“Good Ally” Project & Symposium
In late 2016, Kelly M. Dermody, chair of the firm’s Labor & Employment practice group and San Francisco office Managing Partner, conceived and coordinated the enormously successful SF Bay Area “How to be a Good Ally” project and symposium, attended by 1,300 legal professionals. The symposium, held in San Francisco in January 2017, united scores of California and national non-profit organizations with the legal community in an effort to assist communities in need, including in the areas of hate crimes and Anti-Semitism, government targeting of Muslims, attacks on immigrants and the undocumented, domestic violence and sexual assault, healthcare for people with disabilities and medical vulnerabilities, backlash against the LGBT community, criminalization of communities of color, reproductive rights, worker justice, and saving the environment.
Delayed/Denied Veterans’ Benefits
In the summer of 2016, Lieff Cabraser filed an amicus brief on behalf of Administrative Law Professors and Complex Litigation Law Professors in Monk v. Shulkin in the United States Court of Appeals for the Federal Circuit in support of Conley F. Monk, Jr.’s petition to certify a class action over the claims of thousands of veterans whose benefits claims had been delayed or denied. Citing in part that amicus brief, on April 26, 2017, the Court issued a precedential opinion holding, for the first time, that the Veterans Courts have authority to certify classes in the absence of an express Rule 23 or similar device to promote efficiency and fairness.
On April 1, 2015, Lieff Cabraser secured a precedent-setting victory before the Equal Employment Opportunity Commission in which the Commission held that denial of access to the bathroom of one’s gender identity is unlawful sex discrimination in violation of federal Title VII of the Civil Rights Act of 1964. Lieff Cabraser, along with Transgender Law Center, represented Tamara Lusardi, a transgender woman who transitioned while working for a military defense contractor in Alabama, and was thereafter harassed and denied access to the women’s bathroom. Since this case, Lieff Cabraser has been a frequent collaborator with Transgender Law Center on research and litigation strategy work, including multiple projects in 2017-18.
Supporting Marriage Equality
Lieff Cabraser took an active role in support of marriage equality in California and nationwide. On March 5, 2015, Lieff Cabraser joined 378 businesses to ask the United States Supreme Court to strike down state law bans on same-sex marriage in connection with the pending case, Obergefell v. Hodges. On Friday, June 26, 2015, the U.S. Supreme Court made history in Obergefell by ruling that the U.S. Constitution protects the rights of same-sex couples to become legally married everywhere in the country.
Lieff Cabraser previously participated as an amicus party in the similar employer brief filed in the 2013 landmark United States Supreme Court case, United States v. Windsor (the challenge to the federal Defense of Marriage Act), and served as amici counsel in connection with the 2013 United States Supreme Court case challenging California’s Proposition 8, Perry v. Hollingsworth. Earlier, before the California Supreme Court in Strauss v. Horton, 46 Cal. 4th 364 (2008), Lieff Cabraser served as Amici Curiae counsel for forty bar and legal advocacy non-profit organizations throughout California and nationwide. Amici Curiae argued that Proposition 8’s denial of equal protection to a class of individuals with respect to a fundamental right violated the California Constitution.
Racial Employment Discrimination
In 2008, Lieff Cabraser served as counsel for Amici Curiae the National Employment Lawyers Association and the Lawyers’ Committee for Civil Right Under Law before the U.S. Court of Appeals for the Third Circuit in support of former African- American employees of Johnson & Johnson who alleged they were discriminated on the basis of their race. Gutierrez v. Johnson & Johnson, 523 F.3d 187 (3rd Cir. 2008).
Additional Case Work Advancing Racial Justice
Satchell v. FedEx Express, No. C 03-2659 SI; C 03-2878 SI (N.D. Cal.). In 2007, the Court granted final approval to a $54.9 million settlement of the race discrimination class action lawsuit by African American and Latino employees of FedEx Express. The settlement requires FedEx to reform its promotion, discipline, and pay practices. Under the settlement, FedEx will implement multiple steps to promote equal employment opportunities, including making its performance evaluation process less discretionary, discarding use of the “Basic Skills Test” as a prerequisite to promotion into certain desirable positions, and changing employment policies to demonstrate that its revised practices do not continue to foster racial discrimination. The settlement, covering 20,000 hourly employees and operations managers who have worked in the western region of FedEx Express since October 1999, was approved by the Court in August 2007.
Gonzalez v. Abercrombie & Fitch Stores, No. C03-2817 SI (N.D. Cal.). In April 2005, the Court approved a settlement, valued at approximately $50 million, which requires the retail clothing giant Abercrombie & Fitch to provide monetary benefits of $40 million to the class of Latino, African American, Asian American and female applicants and employees who charged the company with discrimination. The settlement included a six-year period of injunctive relief requiring the company to institute a wide range of policies and programs to promote diversity among its workforce and to prevent discrimination based on race or gender. Lieff Cabraser served as Lead Class Counsel and prosecuted the case with a number of co-counsel firms, including the Mexican American Legal Defense and Education Fund, the Asian Pacific American Legal Center and the NAACP Legal Defense and Educational Fund, Inc.
Curtis-Bauer v. Morgan Stanley & Co., Case No. C-06-3903 (TEH). In October 2008, the Court approved a $16 million settlement in the class action against Morgan Stanley. The complaint charged that Morgan Stanley discriminated against African- American and Latino Financial Advisors and Registered Financial Advisor Trainees in the Global Wealth Management Group of Morgan Stanley in compensation and business opportunities. The settlement included comprehensive injunctive relief regarding account distributions, partnership arrangements, branch manager promotions, hiring, retention, diversity training, and complaint processing, among other things. The settlement also provided for the appointment of an independent Diversity Monitor and an independent Industrial Psychologist to effectuate the terms of the agreement.
Buttram v. UPS, No. C-97-01590 MJJ (N.D. Cal.). Lieff Cabraser and several co-counsel represented a class of approximately 14,000 African-American part-time hourly employees of UPS’s Pacific and Northwest Regions alleging race discrimination in promotions and job advancement. In 1999, the Court approved a $12.14 million settlement of the action. Under the injunctive relief portion of the settlement, Class Counsel monitored the promotions of African- American part-time hourly employees to part-time supervisor and full-time package car drivers.
Adkins v. Morgan Stanley, No. 12 CV 7667 (S.D.N.Y.). Five African-American residents from Detroit, Michigan, joined by Michigan Legal Services, have brought a class action lawsuit against Morgan Stanley for discrimination in violation of the Fair Housing Act and other civil rights laws. The plaintiffs charge that Morgan Stanley actively ensured the proliferation of high-cost mortgage loans with specific risk factors in order to bundle and sell mortgage-backed securities to investors. The lawsuit is the first to seek to hold a bank in the secondary market accountable for the adverse racial impact of such policies and conduct. Plaintiffs seek certification of the case as a class action for as many as 6,000 African-Americans homeowners in the Detroit area who may have suffered similar discrimination. Lieff Cabraser serves as plaintiffs’ counsel with the American Civil Liberties Union, the ACLU of Michigan, and the National Consumer Law Center.
Thompson v. WFS Financial, No. 3-02-0570 (M.D. Tenn.); Pakeman v. American Honda Finance Corporation, No. 3-02-0490 (M.D. Tenn.); Herra v. Toyota Motor Credit Corporation, No. CGC 03-419 230 (San Francisco Supr. Ct.). Lieff Cabraser with co-counsel litigated against several of the largest automobile finance companies in the country to compensate victims of—and stop future instances of—racial discrimination in the setting of interest rates in automobile finance contracts. The litigation led to substantial changes in the way Toyota Motor Credit Corporation (“TMCC”), American Honda Finance Corporation (“American Honda”) and WFS Financial, Inc. sell automobile finance contracts, limiting the discrimination that can occur. In approving the settlement in Thompson v. WFS Financial, the Court recognized the “innovative” and “remarkable settlement” achieved on behalf of the nationwide class. In 2006 in Herra v. Toyota Motor Credit Corporation, the Court granted final approval to a nationwide class action settlement on behalf of all African-American and Hispanic customers of TMCC who entered into retail installment contracts that were assigned to TMCC from 1999 to 2006. The monetary benefit to the class was estimated to be between $159-$174 million.
International Human Rights Work
Holocaust Cases. Lieff Cabraser was one of the leading firms that prosecuted claims by Holocaust survivors and the heirs of Holocaust survivors and victims against banks and private manufacturers and other corporations who enslaved and/or looted the assets of Jews and other minority groups persecuted by the Nazi Regime during the Second World War era. The firm served as Settlement Class Counsel in the case against the Swiss banks for which the Court approved a U.S. $1.25 billion settlement in July 2000. Lieff Cabraser donated its attorneys’ fees in the Swiss Banks case, in the amount of $1.5 million, to endow a Human Rights clinical chair at Columbia University Law School. The firm was also active in slave labor and property litigation against German and Austrian defendants, and Nazi-era banking litigation against French banks. In connection therewith, Lieff Cabraser participated in multi-national negotiations that led to Executive Agreements establishing an additional approximately U.S. $5 billion in funds for survivors and victims of Nazi persecution.