8

It's been reported that the state of California (CA) has sued Activision Blizzard as a result of its two-year-long investigation.

The alleged actions are not alleged to be ongoing. It's been reported that this is a civil action.

I am puzzled by what that means in this context. My limited understanding is that civil actions can only be taken to recoup damages (plus penalties for causing damages) or to stop ongoing behavior which is causing damages.

But the merit of the suit is reported to be a run-of-the-mill sexual harassment, which to my (again limited) knowledge is usually litigated by the United States Department of Justice (DOJ). The DOJ is conspicuously absent from this law suit though.

I understand that states can sue firms when those firms cause states to increase certain expenses (increased healthcare outlays, for example). But I am struggling to imagine what would be the increased costs to the state of CA if a certain firm engages in behavior which gives cause of action to the firm's past and current employees.

So what is the legal reason for CA having standing to sue?

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  • One point is that when the government sues you instead of arrests you, that takes jail off the table... but it also takes the 5th Amendment off the table. 5th Amendment doesn't protect you when you're not in peril of life or liberty. So it's no help with fines, professional licensure, restraining or compelling orders, etc. Sep 3 at 1:31
  • Episode 513 of the podcast Opening arguments is dedicated to this case and goes into details of what laws apply. I think I remember that the what standing question was explicitly covered.
    – hlovdal
    Sep 3 at 8:24
26

A government always has standing to enforce violations of its own laws in its own jurisdiction. The harm to its legally protected interest is its interest in enforcing its own laws. While the forum here is a civil action, the basic concept is the same one that authorizes a government to enforce its own criminal laws.

Also, a government agency may seek fines and not merely compensatory damages or liquidated damages in lieu of compensatory damages, unlike private litigants in civil actions.

A civil government enforcement action is civil in the sense that only monetary damages and injunctive relief are sought, rather than incarceration, and that the court rules for civil actions apply (and as a result, the constitutional rights of criminal defendants are not invoked). But from a standing/political theory/legal theory perspective, this is almost like a quasi-criminal action in which restitution for the victims is also sought.

Many labor, consumer protection, health, safety and environmental laws authorize enforcement by a state agency through the attorney general, or in the alternative, by private litigants acting as a "private attorney general."

In the area of employment discrimination, the usual situation is that you must first seek relief by filing a complaint with the appropriate agency, and then have a private cause of action to enforce your rights associated with the complaint only if and when the agency decides not to pursue the case with its own resources.

The harassment involved here is being conceptualized as a form of employment discrimination that is subject to that kind of regime.

This arrangement is legislatively favored because it provides a means by which people who can't afford attorneys can obtain relief.

4
  • Of course, if the case is against a corporation, incarceration is off the table regardless of whether it’s civil or criminal. You can’t throw an intangible entity in jail.
    – cpast
    Sep 2 at 2:46
  • 5
    @cpast but you can pierce that corporate veil in certain cases and assign fault to the natural persons that are in charge of the corporation. For the harassment that was done by individuals up in management those can be held personally liable. Sep 2 at 10:45
  • 7
    I was under the impression that the plural of "attorney general" was "attorneys general".
    – James_pic
    Sep 2 at 11:07
  • @James_pic It is.
    – Shadur
    Sep 2 at 11:09
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The complaint alleges that Activision Blizzard continues to underpay women (¶¶ 53-63), refuse to promote women (¶¶ 64-74), terminate women because of their sex (¶¶ 75-84), retaliate against women for opposing sex discrimination (¶¶ 85-94), and so on. So the allegation is that the unlawful conduct is ongoing.

It is also not correct to say that DOJ normally handles sexual harassment cases. In fact, I think it would be correct to say that it virtually never brings them. Instead, these cases are brought privately by the victims of sex discrimination, though they are sometimes brought by the EEOC.

Finally, it's worth noting that this case is being brought in state court under state law, so the notions of standing that so frequently trip up litigants in federal court do not necessarily pose the same barriers. Weatherford v. City of San Rafael, 2 Cal. 5th 1241, 1247-48 (2017) ("Unlike the federal Constitution, our state Constitution has no case or controversy requirement imposing an independent jurisdictional limitation on our standing doctrine."). Just the same, the allegations of ongoing illegal conduct would certainly be enough to establish standing in either forum.

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  • would it be more correct to say that when the action is brought by a government body, it is usually a division of DOJ rather than an individual state? Also if the illegal conduct was ongoing, then wouldn't there have been a request for an injunction?
    – grovkin
    Sep 2 at 0:14
  • 2
    @grovkin I do not think that is correct. If a federal agency brings such actions it is usually the EEOC, which is not part of the DoJ., if i recall correctly But such actions can be and often are brought by one state agency or another, the precise one varying by state. I do not hav figures on how often such actions are brought by federal government, vs state government, vs private plaintiffs.. Sep 2 at 0:28
  • General speaking, a filing with the EEOC (or sometimes a parallel state agency) is a precondition to bringing suit. If the EEOC declines to take up the case (which is not necessarily a reflection on the merits) or fails to take action within a certain period of time (last time I looked I think it was 6 months, but I haven't looked in a while), then you get a permission to sue letter to use a private lawsuit. Usually it takes cases involving lots of discrimination victims at the same firm, or "widows and orphans" cases, while leaving big $$ single employee cases mostly to private lawyers.
    – ohwilleke
    Sep 2 at 0:51
  • @DavidSiegel thank you. I couldn't remember the name EEOC and I did assume that it was a division of DOJ. Its wikipedia entry agrees with you. So I was clearly wrong there. I guess my assumption is that when it comes to corporations (especially multi-nationals), they have such wide presence that only a federal agency can address it.
    – grovkin
    Sep 2 at 0:53
  • 1
    Because they're an independent agency, they have their own lawyers litigating discrimination claims in the district and circuit courts. DOJ comes in only at the Supreme Court. 42 U.S. Code § 2000e–4.
    – bdb484
    Sep 2 at 2:09
1

From the complaint, p. 9, DFEH brings the lawsuit for group relief in the public interest and on behalf of the female employees, citing CA code sections 12961 and 12965. Some kind of parens-patriae invocation, I suppose.

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