Yesterday, the California Department of Fair Employment and Housing (DFEH) filed a motion to intervene in a potential settlement between the U.S. Equal Employment Opportunity Commission (EEOC) and Activision Blizzard. The motion argues that the DFEH’s own trial against Activision Blizzard will be irreparably damaged by the conditions of said settlement. The settlement includes a clause which requests that Activision Blizzard be able to remove any allegations of sexual harassment from the personnel files of settlement claimants, effectively destroying evidence that is essential to the DFEH’s own trial.

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The DFEH met with both Activision Blizzard and the EEOC on the 5th of October to inform both parties of its plan to intervene. Normally, it would have to wait seven days before filing its intervention. Instead, due to the grave harm the DFEH sees in a potential settlement, it has filed the motion ex parte, which allows it to be filed instantly if the court finds it reasonable. The DFEH justifies this ex parte request by citing the settlement clause that would allow Activision Blizzard to scrub the sexual harassment allegations.

This would not be the first time Activision Blizzard has supposedly done so either. Two months ago, the DFEH accused Activision Blizzard of shredding evidence that could reflect on the company poorly during its case. This, coupled with Activision Blizzard’s recent decision to hire a union-busting firm, does not reflect well on the company’s previous claims to Kotaku that it is being totally co-operative with the DFEH’s investigation.

Kotaku reached out to the DFEH and Activision Blizzard for comment, and received the following from Activision Blizzard:

The order to alter records is included as part of the settlement and reads as follows:

The DFEH also takes umbrage with a clause in the settlement which allows Activision Blizzard to re-invest non-distributed settlement funds back into its own programs:

While the EEOC has final say over how these excess funds will be allocated, that any of it could return to Activision Blizzard has the DFEH uncomfortable per its motion.

In addition to qualms regarding the status of its own case, the DFEH cites multiple procedural failures in the settlement:

The EEOC and Activision Blizzard were required to inform the courts of the existing trial between the DFEH and Activision Blizzard, and failed to do so. Normally, the EEOC would have to wait for the pending action to finish before starting their own legal action. This is especially problematic given that both trials center on similar evidence and claims.

Furthermore, the EEOC and Activision Blizzard did not request a fairness hearing, which opens the door for the DFEH’s procedural and justifiability complaints. Specifics include the order to dispose of and tamper with evidence, and the fact that unused funds are funneled back into Activision Blizzard (the funds are only to be used for Diversity and Inclusion efforts and are distributed by the EEOC).

This attempted intervention marks the second time in recent memory that the DFEH has presented an issue with a proposed settlement, the first being its recent investigation into Riot Games. In Riot’s case, the DFEH pointed to the potential chilling effect that a settlement can have on an employee’s willingness to testify in a larger trial.

Updated: 10/7/2021, 5:50 P.M. ET:  This piece was updated to include a statement from an Activision Blizzard spokesperson.