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The Lawdragon 500

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EDITORIAL REVIEW

Outgoing Silicon Valley executives and other exemployees call on this vocal plaintiff-side employment advocate, who has only grown in influence as the economy worsened and terminations spread.

—2008 Lawdragon 500 Leading Lawyers in America

Along with winning huge employment suits for plaintiffs, Palefsky quietly champions the ideals of civility and cooperation, rather than scored-earth confrontation.

— Lawdragon, January 2008

This goodfaith guardian won big for workers whose companies unfairly, and often retroactively, lowered their commissions or switched their sales territory.

— Lawdragon, February 2007

A “great, tough lawyer” who is always on the “cutting edge” of employment law, Cliff Palefsky has long fought for the rights of workers, say his peers. His first major victory came in 1981, when he won a verdict against IBM for firing his client after she refused to break up with her boyfriend, a former IBM employee who had gone to work for a competitor. Palefsky also authored a San Francisco city ordinance prohibiting the termination of a worker for his association with certain organizations and relationships with others. The ordinance also prohibited random workplace drug testing. Palefsky has also been an outspoken critic of mandatory arbitration. In 1998, he won a precedent-setting case that struck down mandatory arbitration clauses in employment contracts when they prevent a worker for suing his employer for civil rights violations.

— Lawdragon, October 2005

Complete listing of LAW DRAGON 500 attorneys HERE.

Chambers & Partners

USA Leading Business Lawyers

Described by some defense firms as “the best plaintiff team in California” …

CALIFORNIA Leading firms:

(Employment: Mainly Plaintiff)

1) McGuinn, Hillsman & Palefsky, San francisco

Leading individuals:

(Employment: Mainly Plaintiff)

1) Cliff Palefsky

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Congressional Testimony

On September 15, 2009 Cliff Palefsky testified before the U.S. House of Representatives Committee on the Judiciary on the topic of “Mandatory Binding Arbitration –  Is It Fair and Voluntary?”

Mr. Palefsky’s prepared testimony may be downloaded HERE.

Below are video excerpts from Mr. Palefsky’s testimony:

Opening Remarks

Structural Bias

EEOC Bipartisan Policy Statement

Antitrust Implications

California Lawyer Attorneys of the Year 2010

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March 2009

The 2010 Clay Awards

by the editors of California Lawyer

The California Lawyer Attorneys of the Year Awards recognize lawyers throughout the state whose legal work made a profound impact in 2009. They include a state Assembly member, law professors, sole practitioners, and lawyers from large international law firms. Their practice areas range from appellate law and intellectual property to employment law and disability rights. Among their successes: winning a record whistleblower settlement against a defense contractor, negotiating the first loan guarantee from the Department of Energy for a solar-panel manufacturing plant, and setting a precedent on the federal courts’ ability to cap state prison populations. Altogether, we identify 27 accomplishments in 17 areas of legal practice that reflect the breadth of the California State Bar.  …

In the area of EMPLOYMENT LAW / FALSE CLAIMS the following are named 2010 Attorneys of the Year:

Nancy G. Krop

Sole practitioner, Redwood City

Robert J. Nelson

Lieff Cabraser Heimann & Bernstein, San Francisco

Cliff M. Palefsky

McGuinn Hillsman & Palefsky, San Francisco

Michael Rubin

Altshuler Berzon, San Francisco

These lawyers won a $78.5 million whistleblower settlement, the largest in U.S. Department of Education history, for a case involving improper incentive pay to recruiters at the University of Phoenix. In addition, the department has begun reviewing its rules on incentive compensation with an eye to reforms.

In 2002, two university recruiters came to Krop claiming that the nation’s largest for-profit university had defrauded the department by obtaining billions in federal student loans and Pell Grants while making improper incentive payments to admissions recruiters based on the number of students they signed. Though the Justice Department refused to intervene and the False Claims Act suit was dismissed early, Krop pursued an appeal. This time the Justice Department came in with amicus support. The Ninth U.S. Circuit Court of Appeals reinstated the suit in 2006, and Krop called in Rubin. They pulled together a team with Nelson and Palefsky. That team defeated another motion to dismiss, took more than 40 depositions, and reviewed millions of pages of documents. Krop remained intensely involved throughout the case. The legal team concluded settlement negotiations in December.

CLAY headline

Northern Cal Super Lawyers August 2008

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From Northern California Super Lawyers Magazine – August 2008

True Believer

By Brent Boyd

Some people are guided by a moral compass; San Francisco employment attorney Cliff Palefsky has a moral GPS

Published in Northern California Super Lawyers 2008 — August 2008

Cliff Palefsky’s San Francisco office resides in a sturdy brick building that withstood the Great Quake of 1906. The four-story structure in the Jackson Square neighborhood will surely outlast the trendy furniture shops and ultra-hip coffeehouses that currently surround it. The building’s durability is a testament to the craftsmanship of the American worker, which is appropriate because the American worker has no stronger ally than Palefsky.

Labor leaders of the past were combative types who threw figurative punches at the negotiating table and actual punches on the picket line. Palefsky’s style is much less pugilistic. He has the genial familiarity of every undergrad’s favorite instructor on a big college campus. He certainly looks like a professor with his inquisitive eyes and penchant for wearing jeans at the office. He swears that he owns a tie, but it doesn’t often see the light of day. But what separates Palefsky from most plaintiff’s attorneys is not his ability to teach but his need to preach.

A guest to his office can barely step in the door before Palefsky launches into a sermon on the evils of mandatory arbitration and its infringement on the rights of employees. He’s not espousing any particular religion and he’s not out to save your soul—unless your soul has been wrongfully terminated—but Palefsky preaches about justice because he believes in it. He will take a case only if he has faith in its ability to achieve some societal benefit. This is the only way he knows how to work, and he claims it’s what makes him an effective litigator.

“As a lawyer, it’s really an unfair advantage to believe in what you’re saying,” he says.

There probably aren’t many preachers who were raised in working-class families in the Bensonhurst neighborhood of Brooklyn, but Palefsky still maintains much of the ethos of his upbringing. He comes from a borough famous for rooting for the underdog, and there’s still some Brooklyn in the way he practices law. As a kid, he fed himself a steady diet of Agatha Christie novels and episodes of Perry Mason, which guided him toward the law, although he confesses to a lack of choices: “I don’t remember wanting to be anything but a lawyer,” he says.

He graduated from the State University of New York at Buffalo, then enrolled in law school at Georgetown, where he took a criminal justice law clinic. Upon graduation in 1977, he headed to California, where he joined a boutique firm with John McGuinn and John Hillsman. His move coincided with the seminal case of Tameny v. Atlantic Richfield. The decision in Tameny helped establish the tort of wrongful termination. Watching Hillsman argue as an amicus for the plaintiff before the California Supreme Court, Palefsky discovered a whole new area of law where he could have an immediate and tangible impact on people’s lives by protecting their jobs.

Palefsky first achieved national prominence with Rulon-Miller v. IBM in 1981. The wrongful termination case involved an IBM employee who was fired for continuing a romantic relationship with a former employee who now worked for a competitor. The case’s renown stemmed from the fact that IBM had never lost an employment law jury trial—it was the New England Patriots of corporate litigation. But Palefsky and his firm played the role of the New York Giants, winning an award with punitive damages from a jury. Palefsky takes pride in how the case established a precedent of privacy in the workplace. Employers could no longer intrude into their employees’ lives away from the job.

In an effort to broaden the scope of employment law, Palefsky helped found the influential National Employment Lawyers Association (NELA) in 1985 to train lawyers in the field of employment law and help create tough legislation to protect workers throughout the country. Palefsky calls the initial meetings of NELA the “just cause conspiracy.” In his view, it was a cabal of socially conscious attorneys trying to do the right thing. He was on the organization’s board for several years, but as the group gained size and strength, his interest waned. He still co-chairs two pertinent committees but seems to miss the days of its grassroots beginning. “I want to empower the people,” he says. “I don’t want to be one of the people in power.”

Palefsky continued to concentrate on privacy issues throughout the ’80s—most notably, against mandatory drug testing. In the last 20 years, he has found a new nefarious practice to rail against: mandatory arbitration. He speaks with such passion about it that it feels as if there should be a pulpit nearby. “I can’t sit by and watch companies say, ‘We don’t like the civil rights laws,’” he says. “We just opted out of the civil justice system. You lose the right to a trial, to discovery, to punitive damages. You lose the rights Congress has given us.”

He spends as much time helping to write strong legislation at the state and federal levels as he does handling mandatory arbitration cases. Helping draft viable employment laws is just another tool for him to fight corporate injustice. He doesn’t get paid for it, but he still views it as part of his job. Michael Rubin of Altshuler Berzon has known Palefsky since their days at Georgetown Law. “Palefsky has always been passionate about justice,” Rubin says, “and has been willing to take on fights that nobody else thought were winnable, or economically profitable to pursue, because he believed in doing what was right.”

Palefsky is passionate about fighting for his clients, but he’s remarkably polite. “While he has a strong sense of right and wrong,” Rubin says, “he never lets ideology color his relationships, and he has more close relationships with opposing counsel than any advocate I’ve ever known.”

Palefsky says it’s the best way to do business. Top employment attorneys representing both sides frequently cross paths, so any hard feelings over a claim can affect future cases. Fred Alvarez, partner at Wilson, Sonsini, Goodrich & Rosati in Palo Alto, has faced Palefsky dozens of times. “Our relationship is based on mutual respect, so while we argue like cats and dogs, it never gets uncivil,” Alvarez says.

Being a nice guy is part of Palefsky’s effort to be “a good citizen of the world.” For the last several years, he has been a board member of The Rex Foundation, which funds small grassroots organizations and was started by members of The Grateful Dead. The group doles out grants and other funds to deserving entities that have fallen through the cracks of other fundraising mechanisms. Similarly, Project Avary is an organization that assists kids who have at least one parent incarcerated. Its aim is to break the cycle of violence among the underprivileged. It’s an innovative program, and Palefsky has been its board president since its inception in 1999.

As proud as he is of his charitable efforts, don’t expect to hear him trumpet it. For someone who is often quoted in the press regarding employment issues, he tries to keep a low profile. The firm of McGuinn, Hillsman & Palefsky does not have a publicist. It doesn’t send out press releases nor does it advertise. The firm almost has a Web site, though. It’s been nearly complete for years. It seems to be in limbo waiting for Palefsky to finish his bio. “I really don’t know what to write for it,” he says.

It seems appropriate that the man who has fought so hard to protect the right of privacy is private in his own right. Palefsky lives in the city with his pediatrician wife and their two children. Asked about hobbies, he wonders out loud, “Hobbies? I don’t know … is thinking a hobby?” The reluctance to talk about himself is not an evasive maneuver from a guy with something to hide, but he just seems to find something more important to talk about.

Has he told you about his feelings on mandatory arbitration yet?

In 2007, Palefsky was named one of “The Top Ten Plaintiff’s Attorneys to Fear” by Human Resource Executive Online. It’s difficult to envision this friendly man evoking such terror, considering his favorite piece of advice for HR executives: “Treat employees like human beings.”

This is the heart of the matter for Palefsky. He would love to see the workplace humanized. For all the lofty aspirations of ridding the world of injustice and fighting for what’s right, employment law comes down to people. When an employee is fired, it is never just about the loss of income or a simple monetary calculation. “Some of my best cases have resulted in simple apologies,” he says.

This humanistic approach may be rare, but Palefsky will work hard to see it spread. He feels he has the greatest job in the world. He enjoys his work so much that he will fight to protect everyone’s right to have a job they find just as rewarding.

Teresa McLoughlin has been with Palefsky’s firm for five years. She laughs when asked how the Great Protector of Workers’ Rights treats the people who work for him. She responds without reservation. “He’s a very good boss.”

Of course he is. Palefsky practices what he preaches.

Published in Northern California Super Lawyers 2008 — August 2008

Human Resource Executive Online

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By Scott Flander
August 1, 2007

The following list was prepared exclusively for Human Resource Executive® by Lawdragon, a Los Angeles-based networking site for lawyers and clients. The attorneys were selected on the basis of curriculum-vitae analyses, evaluations by clients and peers, and reporting by the Lawdragon staff.

Cliff Palefsky

Partner, McGuinn Hillsman & Palefsky, San Francisco

Education and Affiliations: J.D., Georgetown (1977); B.A., State University of New York, Buffalo (1974); Co-founder, National Employment Lawyers Association.

Key Cases: Palefsky won the first major wrongful termination verdict, struck down the most onerous mandatory arbitration clauses and is taking on companies that deny compensation and that force employees to litigate in corporate-friendly states. He equally works the legislative process, securing a San Francisco law against random drug testing and lifestyle discrimination, and working on the federal level to secure workers’ rights.

Lynne Bernabei

Partner, Bernabei & Wachtel, Washington

Education and Affiliations: J.D., Harvard Law School (1977); B.A., Harvard University (1972); Member, College of Labor and Employment Lawyers, National Employment Lawyers Association, American Trial Lawyers Association, Trial Lawyers for Public Justice.

Key Cases: Bernabei is representing a quartet of whistleblowers, including an FBI agent allegedly forced to resign for complaining about a bungled terrorism investigation, two Los Alamos employees who reported unlawful billing and an Afghan immigrant who says she was discriminated against in her role as a consultant to a government contractor.

Hal “Rattlesnake” Gillespie

Partner, Gillespie Rozen Watsky Motley & Jones, Dallas

Education and Affiliations: J.D., University of Texas (1972); B.A., University of Texas (1969); Fellow, College of Labor and Employment Lawyers; Associate, American Board of Trial Advocates.

Key Cases: Gillespie is known for representing a whistleblower against Texas energy company TXU and a former employee of Lance Armstrong, who claimed mental distress. He forced Dallas’ transit system to live up to its grievance procedures and vindicated an employee of Spencer Gifts who had been discriminated against.

Debra S. Katz

Partner, Katz Marshall & Banks, Washington

Education and Affiliations: J.D., University of Wisconsin (1984); B.A., Union College (1980); Member, National Employment Lawyers Association.

Key Cases: Clients love Katz, who is tough as nails when it comes to protecting employees who have blown the whistle or been discriminated against. She represented a Fannie Mae whistleblower, whose testimony led to the agency’s overhaul, as well as former employees of Scott Bloch, who runs the Office of Special Counsel and is alleged to have pushed aside longtime employees and stifled dissent.

Jeffrey L. Liddle

Partner, Liddle & Robinson, New York

Education and Affiliations: J.D., New York University (1976); B.S., Cornell University (1971).

Key Cases: He’s “Mr. Millions” to employees harmed by Wall Street misconduct and conflicts of interest. He is lead counsel for 40 former Robertson Stephens investment bankers who claim they’re owed $500 million. He has won some of history’s largest defamation claims and reached a multimillion-dollar settlement for 39 wrongly fired employees of Credit Suisse First Boston’s municipal finance department.

Ellen J. Messing

Partner, Messing, Rudavsky & Weliky, Boston

Education and Affiliations: J.D., Boston University School of Law (1977); A.B., Harvard University (1973); Board Member, National Employment Lawyers Association; Fellow, College of Labor and Employment Lawyers.

Key Cases: In a case against Harvard College’s president, Messing won a huge victory for Massachusetts employee plaintiffs by persuading a court to allow plaintiffs’ lawyers to interview other employees outside the presence of a company lawyer. She also blocked a Massachusetts biotech company from preventing one of its former executives from pursuing new work.

Wayne Outten

Partner, Outten & Golden, New York

Education and Affiliations: J.D., New York University (1974); B.S., Drexel University (1970); Founding Member and Executive Board, National Employment Lawyers Association; Founder, NELA New York; Governor, College of Labor and Employment Lawyers; Co-founder, Workplace Fairness.

Key Cases: The lawyer of choice for Wall Streeters and corporate executives, Outten has handled countless employment and settlement agreements. With the EEOC, he secured a $12 million settlement for a female executive who sued Morgan Stanley for sex bias. He and his team also brought home $18 million for two Wall Street bankers who were fired by Deutsche Bank rather than being paid their due compensation.

Brad Seligman

Executive Director, The Impact Fund, Berkeley, Calif.

Education and Affiliations: J.D., Hastings College of the Law (1978); B.A., Sonoma State University (1975).

Key Cases: Seligman is noted for taking huge winnings from years in private practice and funding The Impact Fund, a Berkeley nonprofit that underwrites class-action civil rights, poverty and environment lawsuits. Seligman is lead counsel in the nation’s largest class-action against a private employer in the discrimination case brought by millions of female employees against Wal-Mart, the gender discrimination class-action against Costco and the recent $61 million settlement with the U.S. Postal Service.

Mary Anne Sedey

Partner, Sedey Harper, St. Louis

Education and Affiliations: J.D., Saint Louis University (1975); B.S., Webster College (1970); Member, Former President, National Employment Lawyers Association; Former President, Workplace Fairness; Fellow, College of Labor and Employment Lawyers.

Key Cases: Female employees have a friend in Sedey, who won $34 million from Mitsubishi for sexual harassment, which she topped with a $47 million settlement against Rent-A-Center, accused of harassing and discriminating against female employees.

Joseph M. Sellers

Partner and Head of Civil Rights & Employment Practice, Cohen Milstein Hausfeld & Toll, Washington

Education and Affiliations: J.D., Case Western Reserve School of Law (1979); B.A., Brown University (1975); President, Washington Council of Lawyers; Head, Employment Discrimination Project, Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

Key Cases: Sellers handles some of the most influential cases involving discrimination and wage-and-hour claims, including those of more than 1.6 million women working at Wal-Mart, 28,000 female Boeing employees, all African-American FBI agents and female undercover CIA officers, and 14,000 chicken-processing workers at Perdue Farms.

SFGate Top 25 Lawyers

Note: The San Francisco Chronicle named the 25 lawyers “whose names came up the most often and with the most enthusiasm” in its May 4, 2003 issue. Cliff Palefsky was named to the list as a top attorney in the field of Employment Law. The complete list can be viewed HERE. Below is the listing as it appeared for Mr. Palefsky.

Marianne Costantinou

Sunday, May 4, 2003

As the saying goes, it takes one to know one. We canvassed scores of lawyers, judges, headhunters and other legal observers for their picks. Here are the 25 lawyers whose names came up the most often and with the most enthusiasm.

Cliff Palefsky

Employment

Despite the image of lawyers as greedy and selfish, lots of lawyers really care about the law and their clients.

Take Cliff Palefsky. He is so relentlessly passionate about the rights of workers that even over the phone, one can feel his intensity.

Well, he says, “You gotta believe in something.”

Palefsky, 49, is an employment plaintiffs attorney. Many in town say there is none better. He also considers himself a civil-rights lawyer, especially when it comes to privacy concerns, because he views worker rights and civil rights as intertwined.

To Palefsky, workers are one of the most powerless groups of society, with few rights and even less leverage. Just to get a job, he notes, applicants are subject to psychological and drug testing, credit checks and other privacy intrusions. And more and more, job applicants are forced to sign contracts forfeiting their right to sue for workplace grievances – even in wrongful termination claims or civil-liberties disputes.

This is called mandatory arbitration – and it drives Palefsky crazy. He has taken this issue to court, and recently helped write state legislation curbing its use.

The Inner Richmond District resident grew up in the Bensonhurst section of Brooklyn. As a boy, he liked figuring out the whodunit in mystery novels, so he decided to become a lawyer. He graduated from the State University of New York in Buffalo in 1974, and in 1977 got his law degree from Georgetown.

He soon joined a practice that evolved into the seven-lawyer firm of McGuinn, Hillsman & Palefsky. In 1981, he and a partner won a landmark case: In Roulon-Miller vs. IBM, they proved that even at-will workers could successfully sue their employers for being fired. It was the first major wrongful termination verdict in the country. Palefsky’s reputation grew from there.