Altshuler Berzon LLP Counsel Push Back Against Tesla’s Motion for a New Liability Trial in Action for Racial Harassment and Negligent Supervision

Dispute Tesla’s Reliance on 91-Year-Old Supreme Court Decision as Requiring Complete Retrial


Nov. 4, 2022 – On behalf of plaintiff Owen Diaz, a former employee of Tesla at its automobile manufacturing facility in Freemont, California, Altshuler Berzon LLP today filed a brief in the Northern District of California opposing Tesla’s efforts to obtain a retrial of a unanimous jury verdict that found Tesla liable under 42 U.S.C. §1981 and California state law for repeated, egregious episodes of racial harassment and for negligent supervision of its own supervisors and of Mr. Diaz’s co-workers.

After the first trial, the federal court jury found Tesla liable on both claims for relief and awarded $6.9 million compensatory damages and $130 million in punitive damages. In response to Tesla’s post-trial motion for judgment as a matter of law or, alternatively, a new trial, the federal district court concluded that the evidence amply supported the jury’s liability findings but offered Mr. Diaz the choice between accepting a reduction in damages to $15 million or a new trial limited to compensatory and punitive damages only. Mr. Diaz accepted the damages-only retrial.

Months later, Tesla filed a motion arguing that a retrial limited to damages only would violate its Seventh Amendment right to jury under Gasoline Prods. Co., Inc. v. Champlin Refining Co., 283 U.S. 494, 500 (1931), and that any retrial, to be fair, would have to include all liability issues as well.

Opposing that motion, Altshuler Berzon LLP attorneys, who have been assisting the trial team led by Bernard Alexander and Larry Organ in all post-trial and appellate matters, argued that Tesla long ago waived any right to argue against a damages-only retrial and that, in any event, Gasoline Products did not entitle Tesla to a complete retrial. Plaintiff’s brief demonstrated that Tesla had a full and fair opportunity to assert these arguments earlier but instead argued that if the district court found sufficient evidence to support the jury’s liability verdict, it should order a damages-only retrial. Plaintiff also demonstrated in detail why the court’s limited retrial order was well within its discretion and would not violate Tesla’s rights, constitutional or otherwise, whereas ordering a complete retrial at this stage would deprive Mr. Diaz of his rights to a fair trial, due process, and trial by jury.

The motion is set to be argued on December 7, 2022.

Court Grants Final Approval to Settlement of Pay Equity Class Action Against Google Providing $118 Million in Class Monetary Relief and Comprehensive Injunctive Relief

On October 25, 2022, San Francisco Superior Judge Andrew Y.S. Cheng granted final approval to the settlement and consent decree in the pay equity class action against Google in Ellis v. Google LLC.  The settlement covers approximately 17,200 female employees in 236 job titles (“covered positions”) in California since September 14, 2013.  The class members challenged Google’s practices of paying women less than men in the same job codes and assigning women to lower-paying salary levels than men with similar education and experience based on women’s lower pay at previous employers.

Under the settlement, Google will pay $118 million in monetary relief and provide three years of injunctive relief.  As part of the injunctive relief, Google will retain an expert in Industrial Organizations psychology to improve its leveling process so that it does not rely on prior pay in setting salary levels and instead focuses on education, experience, and skills. Google will also retain a labor economist to ensure that persons who perform substantially similar work are paid the same.

Altshuler Berzon LLP and Lieff Cabraser Heimann & Bernstein, LLP serve as Class Counsel. 

S.F. Judge Remands Oakland and San Francisco Climate-Deception Cases

Vacates Prior Dismissal of Four Defendants on Personal Jurisdiction Grounds


Oct. 24, 2022 – After five years of procedural wrangling at all three levels of the federal court system, Judge William Alsup of the U.S. District Court for the Northern District of California today remanded to state court two “climate-deception” cases, which were filed in 2017 by the City of Oakland and City and County of San Francisco. Judge Alsup also vacated his 2019 order dismissing four of the five oil-and-gas-company defendants on personal jurisdiction grounds, to enable the parties to litigate in state court on a “clean slate.”

Altshuler Berzon LLP, along with co-counsel from Sher Edling and the Oakland and San Francisco City Attorneys’ offices, are counsel for the public entity plaintiffs, suing on behalf of the People of the State of California.

The underlying lawsuits pleaded a single cause of action for public nuisance against five of the country’s largest energy companies, alleging that the defendants had undertaken a half-century long campaign to promote disinformation and discredit scientific evidence about the impacts of fossil fuel combustion on global warming. In 2019, Judge Alsup denied the People’s motions to remand the cases to state court, dismissed the four non-California-based defendants on personal jurisdiction grounds, and dismissed the People’s remaining claims for failure to state a claim under “federal common law.” The Ninth Circuit reversed and the Supreme Court denied certiorari. On remand, and in light of appellate decisions by the Ninth Circuit and other circuits in several related cases, Judge Alsup agreed with the People that these cases belong in state court, where they were initially filed, and that in the absence of federal subject matter jurisdiction, it is best for the state courts, not the federal court, to decide the personal jurisdiction issues in the first instance.

The remand order has been stayed pending the defendants’ threatened further appeal to the Ninth Circuit and those same defendants’ recently filed certiorari petitions in other related climate-deception cases that the federal appellate courts also remanded.

Altshuler Berzon LLP Attorneys Urge State Courts to Reject U.S. Supreme Court’s Mistaken Understanding of State Law Issues in Viking River Cruises v. Moriana

Briefing on Remand to State Court Highlights Errors in Supreme Court Majority’s Analysis


Oct. 20, 2022 – Hoping to transform an 8-1 initial loss in the Supreme Court into a complete victory in the state courts, Altshuler Berzon LLP and its co-counsel today urged the California Court of Appeal on remand from in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022), to reject the Supreme Court majority’s holdings on two critical issues of state law. If plaintiff succeeds, the result will be a far-reaching victory not only for plaintiff Angie Moriana and the rest of Viking’s commissioned salespeople in California, but for workers throughout the State.

In Viking River Cruises, the Supreme Court began by rejecting each of the employers’ principal arguments, thereby upholding against Federal Arbitration Act (“FAA”) preemption challenge the California rule invalidating clauses in arbitration agreements that prohibit workers from pursuing statutory claims under California’s Labor Code Private Attorneys General Act (“PAGA”). Instead of ending there, however, the Supreme Court went on to decide two exclusively state law issue: (1) construing the severability clause in the arbitration agreement as requiring plaintiff to split her PAGA claim in two, pursuing her claim for “individual” relief in arbitration and her claim for “non-individual” relief in court; and (2) declaring that once the PAGA plaintiff was compelled to arbitrate her “individual” PAGA claim, she lost standing to litigate the remaining “non-individual” component of that claim in court.

Plaintiff’s brief on remand to the Court of Appeal pointed out that if the Supreme Court’s ruling were right, the arbitration agreement would be unenforceable because its effect would be to strip plaintiff or her right to pursue the most significant, “non-individual” component of her PAGA claim—in violation of the very California rule that the Court had upheld against FAA-preemption challenge. Plaintiff then pointed out that the Court’s ruling was not right, both because the arbitration agreement could not fairly be construed as requiring plaintiff to arbitrate any portion of her PAGA claim and, even if it did, the California Supreme Court’s unanimous decision in Kim v. Reins International California, Inc., 9 Cal.5th 73 (2020), established that PAGA standing has only two requirements: that plaintiff be an “employee” who was “aggrieved” by a Labor Code violation committed by her employer, and that plaintiff satisfied those requirements whether her PAGA action proceeded in one forum or two.

Oral argument has not yet been scheduled.

Altshuler Berzon LLP Attorney Matthew Murray Argues in Alaska Supreme Court

On October 13, 2022, Altshuler Berzon LLP partner Matthew Murray presented oral argument before the Alaska Supreme Court on behalf of the Alaska State Employees Association (ASEA) in State of Alaska v. ASEA. The case involves a challenge to the Alaska executive branch’s announcement in 2019 that the State would stop honoring public employees’ voluntary union membership and dues deduction authorization agreements. The Anchorage Superior Court granted a temporary restraining order and preliminary injunction against the State’s plans, and subsequently granted summary judgment to the union, holding that the State and members of the executive branch had breached the State’s contract with ASEA and the accompanying covenant of good faith and fair dealing, and had violated multiple provisions of Alaska’s Public Employee Relations Act (PERA) and Administrative Procedures Act (APA). The court also rejected the State’s argument that it was required to violate state law by the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME Council 31. The State appealed to the Alaska Supreme Court.

News coverage of the argument is available here.

Video of the argument is available here.

ASEA’s brief before the Alaska Supreme Court is here.

Ninth Circuit Affirms $95 Million Settlement of California Meal Break Claims Against Wells Fargo

Rejects Objectors’ Challenge in Expedited Appellate Proceedings


Oct. 12, 2022 – The Ninth Circuit today affirmed the district court’s approval of a groundbreaking $95 million settlement in Ibarra v. Wells Fargo, which involved the claims of nearly 5,000 Wells Fargo home mortgage consultants who alleged that the Bank had used an unlawful formula for calculating legally mandated premium pay for missed rest breaks, basing those payments exclusively on the plaintiffs’ base hourly rates and ignoring the commissions that were the principal basis for their compensation.

Altshuler Berzon LLP was lead counsel on appeal and assisted trial counsel Joshua Hafner and Paul Stevens throughout much of the litigation, including by participating as amicus in a related case before the California Court of Appeal and later, before the California Supreme Court, Ferra v. Loews Hollywood Hotel, LLC, 489 P.3d 1166 (Cal. 2021), which established the underlying principle that all categories of compensation must be included in calculating rest break violation penalties under California Labor Code §226.7.

After overcoming the objector’s challenges to the class action settlement in Ibarra (and two related cases), plaintiffs succeeded again in the Ninth Circuit, first by obtaining an expedited briefing schedule (to avoid further delay in distributing the substantial payments available to class members under the settlement) and then by winning the appeal based on the briefs, in an unpublished decision issued without the need for oral argument. The affected Wells Fargo employees will be receiving their settlement checks before the end of 2022.

California Supreme Court Grants Review in Adolph v. Uber Technologies, Inc.

Limits Review to “PAGA Standing” Issue Addressed by U.S. Supreme Court in Viking River Cruises


August 1, 2022 – The California Supreme Court unanimously granted review in Adolph v. Uber Technologies, Inc. on July 20 2022 and, on August 1, 2022, limited that review to a single issue: whether a plaintiff seeking civil penalties on behalf of the State under California’s Labor Code Private Attorney General Act (“PAGA”) loses standing to pursue such penalties based on Labor Code violations committed against other aggrieved employees if she has been compelled to “individual” arbitration of her clam for PAGA penalties based on violations committed against herself.

This is an important issue affecting millions of Californians because the U.S. Supreme Court in mid-June 2022 – reaching out at the end of its decision in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022), to decide an issue of state law that was neither briefed nor argued – held that under California law, a PAGA plaintiff does lose standing under those circumstances.

Altshuler Berzon LLP was co-lead counsel in the Supreme Court for plaintiff Angie Moriana and is lead counsel for plaintiff Erik Adolph in the California Supreme Court.

Adolph’s argument to the California Supreme Court starts with Justice Sonia Sotomayor’s concurrence in Viking River, which stated that she was joining the five-member majority with the understanding that if the Court’s characterization of California standing law was mistaken, the California state courts were fully capable of correcting that mistake. Adolph’s briefs to the California Supreme Court will explain why the Viking River majority was mistaken about California law, and why the text, purposes, and legislative history of PAGA, which the California Supreme Court already construed on a closely related issue of standing in Kim v. Reins International California, Inc., 9 Cal.5th 73 (2020), establish that a PAGA plaintiff does not lose standing if required, as a matter of Federal Arbitration Act preemption, to split her representative claims for PAGA penalties between a arbitral and a judicial forum.

Briefing in Adolph is expected to be completed by late 2022.

Court Grants Preliminary Approval to Settlement of Pay Equity Class Action Against Google Providing $118 Million in Class Monetary Relief and Comprehensive Injunctive Relief

On July 25, 2022, San Francisco Superior Judge Andrew YS Cheng granted preliminary approval to the settlement of the pay equity class action against Google in Ellis v. Google LLC, No. CGC-17-561299.  Under the settlement, Google will pay $118 million and will modify its leveling and pay equity practices.  The settlement covers approximately 16,500 female employees in 236 job titles (“covered positions”) in California since September 14, 2013.

In addition to the $118 million in monetary relief, the settlement provides that an independent third party expert will analyze Google’s leveling-at-hire practices and that an independent labor economist will review Google’s pay equity studies.  The post-settlement work will be supervised by an external Settlement Monitor over the next three years.  The lawsuit challenged Google’s pay and leveling processes, and Plaintiffs believe these programs will help ensure that women are not paid less than their male counterparts who perform substantially similar work, and that Google’s challenged leveling practices are equitable.

Class Counsel:  Altshuler Berzon LLP and Lieff Cabraser Heimann & Bernstein, LLP are serving as Class Counsel.

Plaintiffs:  The Named Plaintiffs are Kelly Ellis, Holly Pease, Kelli Wisuri, and Heidi Lamar.  All of the Plaintiffs are women who worked for Google in California in a covered position since September 14, 2013.  Their backgrounds:

Plaintiff Kelly Ellis worked as a Software Engineer at Google’s Mountain View office for approximately four years.

Plaintiff Holly Pease worked for Google for approximately 10.5 years, in both Mountain View and Sunnyvale, holding numerous technical leadership roles, including: Manager, Corporate Network Engineering; Manager, Business Systems Integration; Manager, Corporate Data Warehouse/Reporting Team; and Senior Manager, Business Systems Integration.

Plaintiff Kelli Wisuri worked for Google for approximately 2.5 years in its Mountain View office, as an Enterprise Operations Coordinator, Enterprise Sales Operations Associate, and Google Brand Evangelist, Executive Communications Program (aka Sales Solutions Senior Associate).

Plaintiff Heidi Lamar worked as a Preschool Teacher and Infant/Toddler Teacher at Google’s Children Center in Palo Alto for approximately four years.

Next Steps:  The Settlement Administrator will mail a notice describing the settlement terms to Class Members in late August.  The court has scheduled a final approval hearing for October 31, 2022.  If the court grants final settlement approval, the third-party administrator will allocate settlement amounts based on an objective formula to each qualifying class member.

Statements on the Settlement:

“As a woman who’s spent her entire career in the tech industry, I’m optimistic that the actions Google has agreed to take as part of this settlement will ensure more equity for women,” said Plaintiff Holly Pease.  “Google, since its founding, has led the tech industry.  They also have an opportunity to lead the charge to ensure inclusion and equity for women in tech.”

“Google has long been a technology leader.  We are delighted that in this Settlement Agreement and Order Google is also affirming its commitment to be a leader in ensuring pay equity and equal employment opportunity for all of their employees,” said Plaintiffs’ co-counsel Jim Finberg.

Inland Empire United and Latino Voters Challenge Riverside County’s Discriminatory Redistricting under the California FAIR MAPS Act and California Constitution

On June 14, 2022, community advocacy organization Inland Empire United and six Latino Riverside County voters filed suit against Riverside County, its Board of Supervisors, and its Registrar of Voters challenging the County’s 2021 Board of Supervisors redistricting plan under the California FAIR MAPS Act and California Constitution.  Latinos make up nearly half of all residents of Riverside County and roughly two-fifths of the voting population.  Despite considerable growth in the Latino population in the last few decades, there has only been one Latino supervisor on the County’s Board in its 129-year history.  The lawsuit alleges that the County’s 2021 redistricting plan, which includes only a single district with a majority Latino citizen voting age population, unlawfully dilutes the votes of Latino residents, “cracking” Latino communities of interest and denying them equal opportunity to elect candidates of their choice in supervisor elections.

Altshuler Berzon LLP represents plaintiffs Inland Empire United and four individual Riverside County voters in the lawsuit.  The ACLU of Southern California and law firm Sheppard Mullin together represent two other individual Riverside County voter plaintiffs.

The complaint is available here.  A press release issued by Inland Empire United and the ACLU of Southern California is available here.

Plaintiffs and Google Agree to $118 Million Settlement of Pay Equity Class Action

Plaintiffs’ law firms Lieff Cabraser Heimann & Bernstein LLP and Altshuler Berzon LLP announce today that Plaintiffs have reached an agreement with Defendant Google LLC ( “Google”), in which Google will pay $118 million to settle a class action gender discrimination lawsuit, Ellis v. Google LLC, No. CGC-17-561299, pending since 2017. The settlement covers approximately 15,500 female employees in 236 job titles (“covered positions”) in California since September 14, 2013.

In addition to monetary relief, the Settlement provides that an independent third party expert will analyze Google’s leveling-at-hire practices and that an independent labor economist will review Google’s pay equity studies.  The post-settlement work will be supervised by an external Settlement Monitor over the next three years.  The lawsuit challenged Google’s pay and leveling processes, and Plaintiffs believe these programs will help ensure that women are not paid less than their male counterparts who perform substantially similar work, and that Google’s challenged leveling practices are equitable.

Plaintiffs:  The Named Plaintiffs are Kelly Ellis, Holly Pease, Kelli Wisuri, and Heidi Lamar.  All of the Plaintiffs are women who worked for Google in California in a covered position since September 14, 2013.  Their backgrounds:

Plaintiff Kelly Ellis worked as a Software Engineer at Google’s Mountain View office for approximately four years, departing the company with the title of Senior Manager.

Plaintiff Holly Pease worked for Google for approximately 10.5 years, in both Mountain View and Sunnyvale, holding numerous technical leadership roles, including: Manager, Corporate Network Engineering; Manager, Business Systems Integration; Manager, Corporate Data Warehouse/Reporting Team; and Senior Manager, Business Systems Integration.

Plaintiff Kelli Wisuri worked for Google for approximately 2.5 years in its Mountain View office, as an Enterprise Operations Coordinator, Enterprise Sales Operations Associate, and Google Brand Evangelist, Executive Communications Program (aka Sales Solutions Senior Associate).

Plaintiff Heidi Lamar worked as a Preschool Teacher and Infant/Toddler Teacher at Google’s Children Center in Palo Alto for approximately four years.

Next Steps:  The court will set a hearing date for preliminary settlement approval, which if approved will result in the third-party administrator issuing notice to the class members.  If the court later grants final settlement approval, the third-party administrator will allocate settlement amounts based on an objective formula to each qualifying class member. More information is available at the website: https://googlegendercase.com/

Statements on the Settlement:

“As a woman who’s spent her entire career in the tech industry, I’m optimistic that the actions Google has agreed to take as part of this settlement will ensure more equity for women,” said Plaintiff Holly Pease.  “Google, since its founding, has led the tech industry.  They also have an opportunity to lead the charge to ensure inclusion and equity for women in tech.”

Plaintiffs’ co-counsel Kelly Dermody stated, “Plaintiffs believe this settlement advances gender equity at Google and will be precedent-setting for the industry.”

“Google has long been a technology leader. We are delighted that in this Settlement Agreement and Order Google is also affirming its commitment to be a leader in ensuring pay equity and equal employment opportunity for all of their employees,” said Plaintiffs’ co-counsel Jim Finberg.”

Information about Plaintiffs’ Counsel:

Lieff Cabraser Heimann & Bernstein, LLP:  Lieff Cabraser is one of the country’s largest and most successful firms exclusively representing plaintiffs in civil litigation, having secured verdicts or settlements worth over $127 billion for clients nationwide. With 120 attorneys, the firm has led some of the most significant litigation of the last decade, including the VW clean diesel emissions case, which resulted in over $15 billion for VW owners (In re: Volkswagen ‘Clean Diesel’ Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2672 (Northern District of California federal court)); and the high-tech cold-calling wage conspiracy case alleging an agreement among prominent technology companies to not poach each other’s employees, which resulted in settlements totaling $435 million (In re: High-Tech Employee Antitrust Litigation, 11-cv-2509-LJK (Northern District of California federal court)).  Partner Kelly Dermody, co-lead counsel here, led High-Tech for her firm. She is currently Chair of the Section of Labor and Employment Law of the American Bar Association, and Managing Partner of the San Francisco Office of Lieff Cabraser.

Altshuler Berzon LLP:  Altshuler Berzon LLP is a San Francisco law firm that specializes in labor and employment, constitutional, environmental, civil rights, campaign and election, and impact litigation. Altshuler Berzon, LLP has been co-lead counsel in a number of civil rights class actions, including Ries v. McDonalds, 1:20 CV 0002 HYJ RSK ( W.D. Mich. 2022) (sex harassment class action); and Satchell v. Federal Express, C03-2878 SI ( ND Cal.) (race discrimination class action). Altshuler Berzon is currently serving as co-lead counsel in the Jewett v. Oracle Equal Pay Act class action in San Mateo Superior Court, 17 Civ 02669 (San Mateo Sup.) set for trial on January 23, 2023.

For more information, visit GoogleGenderCase.com.