Elena R. Baca

As the global chair of her firm’s employment law department, Elena R. Baca has often represented major corporations in investigations and litigation with the federal Equal Employment Opportunity Commission. One recent example is her success in winning an $18 million settlement with the commission over sexual harassment and discrimination charges against Activision. U.S. Equal Employment Opportunity Commission v. Activision Blizzard, Inc., 2:21-CV-07682 (C.D. Cal., filed Sept. 27, 2021).

But these days, Baca said, she also has to defend clients against employment-related charges filed by other federal agencies. The SEC, for one, also pursued Activision. In February, it imposed a $35 million fine against the company for failing to maintain proper disclosure controls and procedures regarding its workforce. In the Matter of Activision Blizzard, Inc., 34-96796 (SEC, filed Feb. 3, 2023).

Other federal regulators also have begun to focus more on employment, Baca said. “What’s happened in the last year or two is that as ESG expands … different agencies are starting to press into the space.”

The SEC, in particular, has an ESG Task Force that had been principally focused on environmental issues but now is turning to the S, or social issues, branch. “We can anticipate that we will start to see some of those claims in investigation and litigation,” Baca said.

Another example is the Federal Trade Commission. Soon when it reviews mergers, she predicted, “they’re going to start asking for information and evaluating employment topics as part of that review process.”

On the litigation front, Baca spent a large portion of last year defending PG&E against wrongful termination claims filed by five former employees the utility had dismissed for dishonest conduct. This fall, she defeated one ex-employee’s retaliation claims in a jury trial. Hearn v. Pacific Gas and Electric Co., 20CV000391 (Napa Super. Ct., filed June 1, 2020).

The jury did find for the plaintiff on one defamation claim, but that decision is being appealed. Baca said the supposed defamatory statement was identical to three others the jury said were true.

Despite the two settlements, Activision continues to keep her very busy with pieces of litigation related to the original allegations. The most confounding is the failed move by the California Department of Fair Employment and Housing to intervene in the EEOC case. That dispute is now on appeal.

The department, now called the Civil Rights Department, also brought its own action against the company in state court. Since it was filed as another part of “this turf battle between the EEOC and the state,” the case has added parties and grown more complicated, she said. California Civil Rights Department v. Activision Blizzard, Inc., 21STCV26571 (L.A. Super. Ct., filed July 20, 2021).

Then in December, Activision sued the state department, accusing it of “orchestrat[ing] a comprehensive media campaign” against the company and specifically of not properly responding to a series of Public Records Act requests. Skinnell v. California Civil Rights Department, 34-2022-80004057 (Sacto. Super. Ct., filed Dec. 6, 2022).

“Activision was caught in all of this back & forth, which just shouldn’t have happened,” Baca said. “That continues.”

— Don DeBenedictis