Liburt was a key member what was sometimes erroneously billed as the all-woman Orrick team that won a decisive victory for venture capital firm Kleiner Perkins Caufield & Byers in the face of Ellen Pao's gender discrimination suit last year. "They called me the token," Liburt laughed, "but I handled expert discovery, depos and jury instructions. It was a team effort." Pao v. Kleiner Perkins Caufield & Byers, CGC12520719 (S.F. Super. Ct., filed May 15, 2012)
He's proud of that victory, but an earlier case remains a favorite. In it, Liburt performed a kind of litigation jujitsu for client Sears, Roebuck & Co. in a wage class action. Sears' assistant store managers in California alleged the company misclassified them as exempt from overtime, failed to pay overtime wages, failed to provide meal and rest breaks, provided incorrect wage statements and owed the plaintiffs waiting time penalties.
"We learned that the named plaintiff declared bankruptcy two weeks before filing the class action complaint, so he didn't own the claim anymore," Liburt said. "The bankruptcy trustee owned all his assets, including the class action claim." Liburt moved for summary judgment on the grounds that he lacked standing because he no longer owned the claim and that he was judicially estopped from pursuing any claims against Sears because he failed to disclose the class action to the bankruptcy trustee.
The plaintiff responded with a request to reopen the bankruptcy proceeding to try to cure his problems in that court and potentially regain standing, so he could proceed with his class action. "He wanted to try to get a discharge in bankruptcy court, and our judge let him try," Liburt said. That would have potentially let the class action go forward. But Liburt said he consulted with an Orrick bankruptcy partner and came up with a winning plan. Sears bought the plaintiff's class action claim from the bankruptcy trustee for $27,000. Then Liburt told Senior U.S. District Judge Samuel Conti, the jurist overseeing the class action, "We now own this claim, and we dismiss it against ourselves." Conti approved, ending the case. Rodriguez v. Sears Roebuck and Co., 3:10-cv-01268 (N.D. Cal., filed Feb. 11, 2010)
"I love that story," Liburt said. "We saved the client zillions." As for the reaction of opposing counsel: "I would describe it as shock, dismay, chagrin and pissed off," Liburt said.
— John Roemer
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