Bloomberg Law
Feb. 14, 2019, 5:11 PM

‘Secret’ Pacts Between Agencies, Attorneys Raise Some Hackles

Paige Smith
Paige Smith

Oracle recently accused the Labor Department of having a “secret” agreement to share information with private attorneys who represent workers suing the company over alleged workplace bias—all while the agency pursued its own claims that Oracle discriminated against women and minorities to the tune of $400 million in lost wages.

What the software company calls a “secret” pact is otherwise known as a “common interest agreement,” and the DOL has called Oracle’s accusation “wholly meritless.” These information-sharing pacts between enforcement agencies and private attorneys are “routine and consistent,” the agency filing said.

Several attorneys told Bloomberg Law this is the first time they’ve heard about the Office of Federal Contract Compliance Programs using these common interest agreements, and they questioned whether the agreements were legal. Such pacts are more common in Equal Employment Opportunity Commission and Justice Department litigation.

The OFCCP’s Pacific Region currently has pacts with firms involved in discrimination litigation against Google and Microsoft, according to former Labor Solicitor M. Patricia Smith. Tech companies in particular have recently grappled with bias allegations, and Dell, Qualcomm, and Palantir have already settled OFCCP discrimination claims.

The EEOC and Justice Department frequently enter into common interest agreements, which allow the free exchange of data, documents, and strategies between parties, according to Wayne Outten, chair and founding partner of plaintiffs’ class action firm Outten & Golden, and a former government attorney who is familiar with such agreements.

“Basically it allows us to share information without waiving attorney client privilege, so we were able to work as a team without any barriers or limits on what we could share with each other,” Outten told Bloomberg Law.

Knowledge of the agreements at play could stall settlement talks between employers and the Labor Department, as employers defend against a two-front legal war with the government and private plaintiffs.

“If this is known, it could inhibit settlement discussions since employers will be giving information to plaintiffs’ lawyers in addition to the government,” Lawrence Lorber, the OFCCP’s director under President Gerald Ford, told Bloomberg Law.

Kelly Dermody, one of the attorneys representing workers alleging sex discrimination against Microsoft and Google, which have separately been on the OFCCP’s radar, said she’s unable to comment on the status of any agreements in pending cases. But Dermody of Lieff Cabraser Heimann & Bernstein added that the “sharing of information between lawyers who share common interests or clients is not unusual and is frequently done by practitioners on both sides of the bar, including government regulators.”

An OFCCP spokesman didn’t respond to Bloomberg Law’s multiple requests for comment. Attorneys representing Google and Microsoft didn’t respond to requests for a comment, and an Oracle spokesperson declined to comment.

Deals Common with EEOC, DOJ

The EEOC and an attorney representing a female worker in a 2001 gender discrimination case against Morgan Stanley used a common interest agreement to freely share information, Outten said. The EEOC brought its case against the company, and then Outten sued on behalf of the worker 15 minutes later, intervening into the same case and moving forward with the intel-sharing deal.

A Justice Department example stems from the Deepwater Horizon oil spill in 2010, when many individual plaintiffs were suing BP for wrongdoing, a former DOJ attorney told Bloomberg Law, speaking on condition of anonymity. Many of the individual plaintiffs operated under common interest agreements to share information, the former DOJ attorney said.

The Justice Department declined to comment on its official policy regarding common interest agreements. The EEOC doesn’t have a uniform policy, an agency spokesperson told Bloomberg Law.

The EEOC makes the decision to work under a common interest agreement “based on the cirumstances of the case, the law of the jurisdiction, and local rules,” EEOC spokesperson Christine Nazer said in an email. “We would only enter into a common interest agreement when we are joint-plaintiffs to the same court action.” The Oracle case doesn’t have joint-plaintiffs in the same court action.

Legally Kosher?

Courts have recognized the common interest privilege applies to communications between private plaintiffs’ lawyers and the EEOC and DOJ, which both enforce Title VII of the 1964 Civil Rights Act, where the government and private plaintiffs bring similar accusations against the same defendant.

The OFCCP, however, operates in accordance with Executive Order 11,246, making management attorneys wary of the agreements’ legality for the Labor Department.

For example, the agencies have different structures on how they investigate discrimination, Fisher Phillips partner Cheryl Behymer told Bloomberg Law. The EEOC accepts bias charges directly from workers—who later can intervene in lawsuits brought by the EEOC against their employer, thus leading to the formation of a common interest agreement, Behymer said. That’s what happened with Morgan Stanley.

In contrast, the majority of the OFCCP’s discrimination litigation stems from its random audits of government contractors that don’t necessarily include specific discrimination complaints from workers, she said. The OFCCP regularly audits between 1 percent and 2 percent of about 120,000 contractor locations each year. It was during one of these random audits that the OFCCP uncovered the alleged discrimination among Oracle’s employees.

Lawyers Take Lead

The OFCCP’s National Office isn’t briefed on the regular use of common interest agreements by DOL attorneys, Smith said.

“It’s not as if it would be such an unusual thing as someone would have to get my permission,” she said. “It just seems like it’s normal and good practice.” Former OFCCP director Patricia Shiu also said that she hadn’t entered in to a common interest agreement.

The three OFCCP cases with confirmed common interest agreements, Oracle, Google, and Microsoft, originated in the Pacific Region.

‘Common Interest’ Debated

Another potential sticking point is whether the office has a “common interest” with the plaintiffs’ firms.

Although private plaintiffs might benefit from the agency’s “fairly unlimited discovery authority,” it’s unclear how the agency benefits from a common interest agreement “other than seeing that they have an ally in the private litigation,” said Lorber, now senior counsel at Seyfarth Shaw.

“There is really no common interest,” said Lorber, now senior counsel at Seyfarth Shaw. “There are common facts, but there is no common interest.”

Former Labor Solicitor Smith rebutted this observation, saying the OFCCP asks the private plaintiffs’ attorneys for information to bolster their cases, not vice versa.

“If you’re in administrative proceedings and you’re going back and forth, those discovery disputes could take forever to resolve,” she said. Government contractors are “fighting giving out the information every step of the way.”

To contact the reporter on this story: Paige Smith in Washington at

To contact the editors responsible for this story: Cheryl Saenz at; Jay-Anne B. Casuga at