United States: Sue Tsunami: The Rising Tide Of Verdicts And Settlements In California-Based Employment Litigation

Within weeks of each other, two California juries awarded eight-figure verdicts to individual plaintiffs in employment cases. On April 25, 2017, in Babyak v. Cardiovascular Systems, Inc., a Los Angeles jury awarded $25.1 million in compensatory and punitive damages to a former regional sales manager who alleged that he was retaliated against and wrongfully terminated for whistleblowing. Then, 10 days later, in King v. U.S. Bank, N.A., a jury in Sacramento awarded $24.3 million in compensatory and punitive damages to a former U.S. Bank executive who claimed the bank mishandled a specious sexual harassment complaint made against him and wrongfully terminated him before he qualified for a large performance bonus.

While to a casual observer, it might be tempting to dismiss these verdicts as anomalies and their proximity in time a mere coincidence, they are not. They are indicative of a trend in employment litigation in California that has been incubating over the last decade and has ripened into full bloom over the last year or two. This trend is the inflation of jury awards and, consequently, settlement values (and, therefore, obviously the costs of defense). (This phenomenon is so well established that retired Los Angeles County Superior Court Judge, and now mediator, Jeff Winikow recently wrote an article about it in the California State Bar's Labor & Employment Section publication.) There are multiple drivers of this phenomenon, but we focus here on three primary causal factors.

First, a handful of prominent plaintiff-side employment attorneys, names many of you would recognize, have made a career decision to try cases . . . and lots of them. Quite simply, the group we reference have made substantial sums though trials, have the liberty to try cases without any personal economic pressure, and enjoy the trial experience far more than the mundane elements of pre-trial work. This group has scored multiple seven- and some eight-figure verdicts over the last decade, with increasing frequency over the last several years. If they lose, well . . . so be it. To be clear, there is a concentration of particularly skilled plaintiffs' side attorneys who do not want to settle cases they believe are strong; they want to try them and view their recent successes as vindication of what amounts to a lifestyle decision.

While that alone has driven a market appreciation, the real influence has been on the next generation of plaintiffs attorneys who now feel that they MUST try cases to establish credibility and open the ability to obtain high-value referrals. Referrals at the eleventh hour for 50% of the fee further drive up settlement values and embolden non-trial lawyers to take aggressive stands. This trend translates into demands at mediation which are routinely multiples of what they would have been even three or four years ago. It also means that a lot more cases are tried.

Second, over the last five years, the California judiciary has demonstrated a willingness to issue large attorneys' fee awards to prevailing plaintiffs in employment cases. Where historically fees were less than the jury's verdict, that is emphatically no longer the case. A well articulated theme that the plaintiff's bar assumes all the risk of contingency litigation and that civil rights litigation inures to the benefit of society as a whole has resonated with the bench, and seven-figure fee awards have become far more common. For instance, in a well-publicized 2014 sexual harassment trial brought by a former server against a celebrity-owned Beverly Hills restaurant, Los Angeles County Superior Court Judge Michael Linfield awarded the plaintiff $1.49 million in attorneys' fees on a $106,250 verdict. Pause for a moment and consider the seismic impact that had on observers among the plaintiff's bar. Fees were almost 15 times the verdict amount. As a result, settlement values have increased as the plaintiff's bar has taken a risk-tolerant position: "Hey, if I recover anything from the jury, I'm going to get a huge fee award."

Third, there has been a spate of challenges to sitting California Superior Court judges in the last several election cycles (it used to be that a sitting judge was almost never challenged in an election). In at least one instance, the sitting judge was defeated. This has made Superior Court judges even more reluctant to grant summary judgment because if such a grant is reversed, it becomes fodder for a challenger to exploit. 

In light of this hyper-inflation of verdicts and settlements, an employer's ability to effectively manage the risk of employment claims has become more important than ever. It is imperative to take a comprehensive approach to risk management and consider whether your insurance, policies and procedures, and HR staff are commensurate with your needs. It is also critical to engage skilled employment counsel to assist in navigating employment decisions which will clearly implicate material risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions