Risk Update

“Playbook” Conflicts — Not Playing in California

Posted Dan Bressler

“Calif. Appeals Court Reverses Atty DQ In Car Dealer Bias Suit” —

  • “A California appeals court said Monday a law firm founded by a former luxury auto group executive can keep representing a former worker in a bias suit against the group, distinguishing the suit from other pending litigation the firm was booted from.”
  • “‘Here, in contrast, the declarations in support of the motion to disqualify Richie Litigation … do not identify any communications with counsel regarding investigation of Loera’s claims of unlawful employment practices, issues relating to his discharge or the company’s strategy in defending against Loera’s lawsuit,’ the panel said, denying O’Gara’s bid to disqualify Richie Litigation from representing Loera.
  • “O’Gara asked the court to disqualify Lu as Loera’s attorney, arguing his involvement in the case was unethical because Richie was an executive for the dealership before he launched the firm. The trial court sided with O’Gara, finding that Richie was privy to the development of the employment policies at issue in Loera’s case. Loera then appealed.”
  • “But the appeals court on Monday said the company offered no such evidence to back up its bid to remove Richie’s firm from the Loera suit. It found Richie only has ‘playbook information’ relevant to Loera’s case, using a term for general confidential information, such as settlement strategy or philosophy, obtained during previous work for a client. And California law does not preclude firms from representing a client when ‘one of its attorneys possesses information concerning an adversary’s general business practices or litigation philosophy acquired during the attorney’s previous relationship with the adversary,’ the panel said.”

And from Bill “Always on the Ball” Freivogel: Wu v. O’Gara Coach Co. LLC, 2019 WL 3955761 (Cal. App. Aug. 22, 2019).

  • “In this case Thomas Wu sued O’Gara Coach (“O’Gara”) for race discrimination and related wrongs. Wu worked for O’Gara from 2010 to 2016. Darren Richie was President of O’Gara from 2014 to 2016. After leaving O’Gara, Richie passed the California Bar and formed a law firm, Richie Litigation. Richie Litigation represents Wu in this case. O’Gara moved to disqualify Richie Litigation.”
  • “In this opinion, distinguishing O’Gara Coach Co., LLC v. Ra, 30 Cal. App. 5th 1115 (2019), the court denied the motion to disqualify. Ra involved a similar claim. Richie, while at O’Gara, had worked on Ra’s situation. The court in Ra found that Richie possessed privileged information of O’Gara relating to Ra. In the case of Wu, Richie had no involvement and, thus, no privileged information.”
  • “However, Wu was impacted by the work Richie had done at O’Gara on employment practices. Nevertheless, analyzing the “playbook” approach, the court found that Richie’s role was not specific enough as to Wu to be disqualifying. Shortly after deciding Wu, the appellate court in Loera v. O’Gara Coach Co., LLC, 2019 WL 4014086 (Cal. App. Unpub. Aug. 26, 2019) also reversed an order of disqualification because Darren Richie had no confidential O’Gara information relating to the employment of the plaintiff, Jorge Loera. Loera is alleging wrongful termination and related causes of action.”