A California appellate court has found that a law firm run by the former president and COO of a luxury car dealership can represent a fired Asian-American salesman in pursuing discrimination claims against the company.
The Second District Court of Appeal on Wednesday reversed a lower court decision that found that Darren Richie and Richie Litigation, the law firm he founded in 2017 after leaving his position as a senior executive at the O’Gara Coach Co. LLC car dealership chain, should be disqualified from representing Thomas Wu, a former salesman at the company’s Beverley Hills Bentley dealership. Wu claimed that leadership at the company had created a hostile work environment, that his supervisor referred to his Chinese friends as “chinks” and to him as “Buddha” or “sumo wrestler” due to his weight and heritage.
The company’s lawyers had successfully argued at the trial court below that Richie would be a key witness in the case and that through his employment at the company he had been directly involved with matters substantially related to Wu’s claims including the company’s discrimination policy. The company’s lawyers had also argued that, as a former senior executive, Richie owed the company continuing fiduciary duties, including to maintain the confidentiality of its privileged information.
But on Wednesday, the Court of Appeal found that, though Richie, who sat for the bar in 2017 after leaving the company, had been involved in setting and implementing the company’s discrimination policy as a nonlawyer, he never had an attorney-client relationship with O’Gara Coach. They also found that since Richie was not Wu’s personal lawyer his involvement as a witness was a nonissue.
“Under California law a law firm is not subject to disqualification because 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,” wrote Presiding Justice Dennis Perluss for the unanimous three-judge panel.
The court found that O’Gara Coach hadn’t shown “the required material link” between Wu’s claims in the lawsuit and the development and implementation of the policies Richie worked on while still at the company. The court reached this conclusion despite declarations from O’Gara Coach’s outside counsel at Fisher & Phillips and A
rent Fox, as well as the company’s outside general counsel, Encinitas sole practitioner Keith D. Kassan, about their numerous interactions with Richie.
“While O’Gara Coach argues Richie was the primary point of contact at the company for its outside general labor and employment counsel regarding the handling of employee complaints, it identifies no category of information gained by Richie as a result of those contacts that is directly at issue in, or has some unusual value or critical importance to, Richie Li
tigation’s representation of Wu,” Perluss wrote.
“We are gratified that the Court of Appeal recognizes that Richie Litigation is not disqualified simply because of Mr. Richie’s prior work for O’Gara Coach,” Brown said. “The Court made clear that general information about the personalities, business practices, procedures, or ‘the playbook’ of a former client, or in this case a former employer, cannot be enough to justify disqualification of a lawyer.”.Richie, whose firm bio lists his C-suite experience dealing with “ultra-luxury brands as Bentley, Rolls Royce, Lamborghini, Aston Martin, Maserati, andDucati,” referred a request for comment to Wu’s appellate counsel on the matter, Ethan Brown of Brown Neri Smith & Khan in Los Angeles.
O’Gara Coach was represented by Wendy McGuire Coats, who left Fisher & Phillips for an appointment on the Contra Costa County Superior Court bench while the appeal has been pending, and Christopher Boman and Sean Kingston, who remain with the firm. Boman was out of the office and unavailable for comment Thursday.
The Second District’s ruling comes a little more than seven months after the court went the opposite way in an earlier case involving Richie and the dealership. In the earlier case, the court found that Richie had knowledge of O’Gara Coach’s protected information regarding a former senior executive the firm was seeking to represent and disqualified both Richie and the firm. In the previously decided case, the court disqualified the firm, reversing a decision from the trial court below.