Tip-Sharing Fighter Jars Starbucks

The San Francisco Daily Journal, Monday, March 31, 2008

Source: Rebecca Beyer, Daily Journal Staff Writer

Lawyer's Work as Lead Counsel for Baristas Wins Them $105 Million in Damages

San Francisco- Plaintiffs' lawyer David A. Lowe sat in his office last week cradling a cup of hot water.

Despite the fact his name may forever be associated with Starbucks and it's baristas, there was no coffee in Lowe's cup.

Warming his hands on the mug, Lowe reflected on a San Diego County Superior Court judge's March 19 ruling that Starbucks must pay $105 million to Lowe's clients, a class of 100,000 California baristas.

As lead trial counsel in a two-month bench trial before Judge Patricia Cowett, Lowe and his co-counsel argued Starbucks illegally forced the baristas to share their tips with supervisors.

The stunning victory has sparked at least two copycat lawsuits against the coffee behemoth, in Massachusetts and Minnesota. Lowe, a partner at Rudy, Exelrod & Zieff in San Francisco, is not involved in either of those.

He said he felt a mix of emotions after he and his co-counsel from various firms received Cowett's faxed ruling.

"I think the overwhelming feeling was one of vindication that the system worked and that our clients would be paid for the money that was taken from them," he said.

A little more than 24 hours after receiving Cowett's ruling, Lowe and his partner of 15 years were heliboarding in the Chugach Mountains in southern Alaska.

It was, Lowe said, amazing.

And - after helping secure full restitution for the baristas - arguably well-deserved.

Lowe was lead trial counsel on the case, working closely with Laura L. Ho, of Oakland's Goldstein, Demchak, Baller, Borgen & Dardarian; A. Eric Aguilera of Costa Mesa's Bohm, Matsen, Kegel & Aguilera; and Terry Chapko, of Coronado.

Chapko and Aguilera filed the case originally and took it to Lowe's and Ho's firms after winning class certification to beef up their resources and expertise.

"It was such a large case that we needed further assistance from larger plaintiffs' firms," said Chapko, to whose firm a Starbucks barista came with the tip-sharing issue.

The team proved to Cowett that Starbucks had used tips to compensate shift supervisors in violation of California law. Lowe emphasizes that Cowett awarded the $86.7 million plus interest in restitution based on calculations of the average tip rate by the plaintiffs' experts.

"I hope that people will look at it and understand that what the court ordered was simply repayment of all the money Starbucks had distributed from the tip pool to shift supervisors," he said. "The amount isn't driven by emotion or passion."

Starbucks has vowed to appeal and to fight the copycat suits. It said in a statement that the ruling is "contrary to the law" and "fundamentally unfair." Customers don't differentiate between shift supervisors and baristas, who both provide customer service, the company said.

Lowe's colleagues on the case said he was excellent as lead trial counsel, weaving the case together in well-crafted opening and closing statements at both the liability and remedies phases of trial.

Lawyer Helps Put Starbucks in Boiling Water

The 37-year-old's journey to the law started early. He and two younger brothers grew up in the suburbs of Cleveland, Ohio, where his father worked - and still does - as a plaintiffs' attorney. His mother was a social worker and today runs a therapy practice from home. Lowe remembers going to court with his father and the problem-solving efforts of his mother as the foundation of his own career plans.

"Those were things that really helped shape what I wanted to be," he said. "I found a niche in helping people being exploited at work, who were being victimized by a job."

Lowe moved from Cleveland to Atlanta to attend Emory University, where he studied English literature and philosophy. He received the school's humanitarian award for his work on women's safety, environmental and racial issues. He ran for president of the student body - the first openly gay candidate to do so - and lost. But the experience was invaluable.

"The election got a lot of attention," he remembered. "There was some homophobia, but we used it as a platform to talk about progressive issues."

Lowe worked to raise awareness of HIV/ AIDS on campus and was successful in bringing the AIDS Memorial Quilt to the campus twice; once displayed in the school's chapel, and the next time, when it had grown in size like the numbers of people lost to the disease, in the school's gymnasium.

After Emory, Lowe moved to the Bay Area to attend Boalt Hall. In his first summer, he worked with the Berkeley Community Law Center working with people with HIV/AIDS. In his second, he externed with U.S. District Judge Marilyn Hall Patel, of the Northern District. Both summers strengthened his interest in public interest and trial work.

After graduating from Berkeley in 1995, Lowe started working as a contract attorney for various firms, including Rudy, Exelrod & Zieff. After a year and a half, the firm hired him as an associate, and in 2006, he became partner.

"He's just a top-flight attorney," said Steven G. Zieff, a name partner at the firm. "He does a great job for his clients. His knowledge of the law, his dedication to the rights of workers and his attention to detail just come through very powerfully."

Opposing counsel also speak highly of Lowe.

Patricia K. Gillette, of Orrick, Herrington & Sutcliffe in San Francisco, has handled discrimination against Lowe.

"He's everything you would want in opposing counsel," Gillette said. "He's smart; he's professional. He tries to reach resolution."

She said Lowe is the kind of attorney who calls before the filing of a lawsuit to get a discussion started.

"I don't mean to say he's a roll-over," she laughed. "He's a formidable opponent with great commitment."

Like others at Rudy, Exelrod & Zieff, Lowe stays busy on a variety of individual and class lawsuits. In the last few years, he's worked to protect employment status and benefits for military personnel who are returning from deployments abroad. He's also focused on cross-border employment cases in which U.S. employees abroad face discrimination or harassment or in which foreign companies in California are not following state law.

"The workplace is increasingly global," he said. "It raises a whole host of interesting and unique issues."

Lowe is vice chair of the International Bar Association's discrimination committee. He is active in the Pride Law Fund, which provides grants for work on legal issues in the lesbian, gay, bisexual or transgendered community. He also serves as co-chair of the California Employment Lawyers Association's legislative committee.

"Sometimes, you can't win a case because we just don't have the right laws on the books," he said. "The adage 'for every wrong there's a right' isn't necessarily true under California law."

Cliff Palefsky, of McGuinn , Hillsman & Palefsky in San Francisco, used to be on the board of the employment lawyers' association.

"He was someone who has a lot of enthusiasm for the policy aspects of employment law," Palefsky said.

"He just picked up the ball and ran."

Lowe said he knew from a very early age he wanted to be an attorney, "to use this mechanism that's available to us in this country to put things right."

Besides his father, Lowe's paternal grandfather was an attorney and one of Lowe's younger brothers works for a plaintiffs' firm in San Diego. Lowe's partner of nearly 16 years, Steve Murphy, was an attorney at Charles Schwab before leaving practice to prepare the Lowe-Murphy household for a new addition - a baby boy the couple is expecting in April via a surrogate mother.

Lowe expects the baby to become their greatest adventure, replacing heliboarding, and hiking and snowshoeing with the couple's Great Dane-boxer mix, Rocky.

On the flight home from Atlanta, he and Murphy had time for some light reading with that adventure in mind. The subjects? Umbilical cords and infant fevers.