Class-action employment attorney takes on Walgreens for its role in opioid epidemic
Thinking creatively is an asset in many professions, though law typically doesn’t show up on a short list for creativity. Michael Levin-Gesundheit has proved to be an exception.
The partner with Lieff Cabraser Heimann & Bernstein in San Francisco has developed a reputation for finding what he calls “creative pressure points” and being persistent about squeezing them to gain the upper hand in cases against employers accused of wrongdoing.
“If you believe there’s something out there, go and find it,” Levin-Gesundheit said. “In the opioid case, for example, last fall, we were working on tracking down an internal complaints database, and Walgreens claimed that it really didn’t have access to the database anymore because it was retired. So, we served a subpoena on the vendor that maintained the database. … If you believe there’s something that you need to get the support for your case, you can’t take no for an answer.
“I think that’s something I’ve learned over time, that part of developing our cases of discovery is being tenacious,” he continued. “And when one door closes, I’m looking for another that’s open when it comes to information to prove our case.”
Levin-Gesundheit worked tirelessly with Lieff Cabraser’s team in preparing the San Francisco opioid bellwether case for trial. For his part, Levin-Gesundheit focused on Walgreens and its role in keeping its pharmacists from conducting the prescription due diligence required under federal law.
The three-month-long bench trial itself ended in mid-July, but the prep work for the trial began as far back as 2020. Obstacle number one became the pandemic lockdown as Levin-Gesundheit and the Lieff Cabraser team were working on the opioid case closely with officials in the San Francisco City Attorney’s Office and Public Health Department, the very people who were also the major players in the city’s response to COVID-19.
“Many of their employees served as important witnesses in the case,” he explained. “We were working in very challenging circumstances. We learned how to do remote work very quickly at a time when we needed to get a tremendous amount of work done. We learned how to take remote depositions, and I think they worked very well. We were able to use that remote period to really meet with a lot of different people about very different topics very quickly because we wouldn’t have to travel from one office to another.
“One of the roles I played was I spent a lot of time developing the testimony of current and former Walgreens pharmacists about their experiences and about the pressures that Walgreens put on them to fill prescriptions,” Levin-Gesundheit continued. “Mainly the difficulty they encountered in conducting prescription due diligence. I think a lot of people when they hear about opioid cases, they don’t think about the pharmacy and the role that they play in the opioid crisis and the responsibilities they had to question some of the prescriptions they were receiving. Our team spent a lot of time focusing on the Walgreens part of the story and developing testimony for pharmacists.”
Levin-Gesundheit has plenty of experience working on class action cases, particularly discrimination class actions, he said, and he believes in doing so, he has developed skills working with employees of companies to tell their stories about how company policies affected them. That experience in the employment context was helpful in developing the witnesses in the opioid case. Employees had made complaints about some of the same issues the team was litigating in their case. Having focused on employee complaints in prior discrimination cases helped Levin-Gesundheit find a way to leverage those skills.
“One of the things I try to do in the cases I work on is think about creative pressure points that haven’t necessarily been pursued before,” he said. “The opioid litigation has been going on for quite some time, and there are different cases that have gone to trial. At each trial, counsel has an opportunity to develop different parts of the case that will build on the work of others.”
Levin-Gesundheit developed what amounted to a new area focusing on what pharmacists said was happening behind the counter. It involved meeting people for hours at a time to hear their stories, he said. One of those people would meet him in his own neighborhood, San Francisco’s Sunset District, at the height of the pandemic lockdown, and they would take walks during Levin’s lunch break, talking about the employee’s experience when he worked at Walgreens.
A judge’s decision in the trial was likely to come within a couple of months after its conclusion, which would have the result sometime in September.
Bay Area native
Levin-Gesundheit was raised on the San Francisco Peninsula by parents who both were physicians, he said. After high school, he attended Harvard, where he earned a bachelor’s degree in social studies, graduating magna cum laude. He then returned to the Bay Area to attend law school at Stanford, where he was managing editor of Stanford Law & Policy Review.
By the time Levin-Gesundheit got to law school, he had still been a bit tentative about the direction of his career.
“I don’t think I knew exactly what I wanted to do when I started law school,” he admitted. “I was just a couple years out of college, and it matched my skill set, but I don’t think that I really knew what I wanted to do with the law, or that I really understood exactly what you could do.”
Levin-Gesundheit said a desire to work on behalf of the public interest and trying to protect fairness for people drew him to law school. Government work was one thing he explored after Harvard and before Stanford Law, as he worked as an investigator for the Federal Trade Commission for about four months. After graduating from Stanford, he clerked with the U.S. District Court for the Eastern District of California in Sacramento for a year then worked as a clerk for the U.S. Court of Appeals for the Ninth Circuit in Pasadena for another year.
“It was really when I was clerking that I became very interested in being a plaintiffs’ lawyer, seeing how lawyers presented their cases and the opportunities they had to truly make changes at companies,” he said. “And we had employment class action at the district court and on the ninth circuit that did show me there really was a way that plaintiffs’ lawyers work through their individual clients to bring systemic changes. I think that was something I was thinking about in law.”
Levin-Gesundheit then returned to the Bay Area and focused on trying to be a plaintiffs’ lawyer. He searched for plaintiffs’ work, particularly class actions, and landed an associate position with Lieff Cabraser. After six years with the firm, he became a partner. It wasn’t a path he could have predicted, but he’s happy how everything turned out, he said.
“I’m taking more of a leadership role in these cases now, and I’m very happy with the trajectory,” Levin-Gesundheit said. “And I’m glad that I’ve stuck with this path, particularly because it is a path where I think you do get very little guidance about how to pursue this type of career in law school. Law schools are very focused on defense-oriented firms. You don’t typically hear too much from plaintiffs’ lawyers, at least not where I went to law school.”
Building a reputation
Levin-Gesundheit works mainly on employment class actions and consumer class actions, and similar to the opioid case, he works on actions on behalf of public entities. One particular class action he remembered fondly was a gender discrimination case against Goldman Sachs for which he led the charge to combat arbitration terms that were imposed on class members in the middle of the litigation, he said. This was one case where Levin-Gesundheit developed a reputation for being tenacious and relentless as he fought the Fortune 500 investment banking company to enforce the arbitration agreements. He said he was forced to think creatively about different ways to attack arbitration because the law is favorable, generally speaking, to an employer.
“It is a hard-fought case that has lasted quite some time,” he said. “We obtained the right for a significant number of class members to choose to reject arbitration. And then last spring, I led an effort to get that choice, that notice out to people, which was very difficult. We had to get people’s attention and allow them to feel comfortable making the choice to stand up against either a current or former employer.
“It was very hard to get their attention,” he added. “We went to great efforts to reach people via different (avenues): email, mail, direct phone calls. Approximately half responded and rejected arbitration.”Goldman Sachs’s attorneys called Levin-Gesundheit “relentless,” as he prevailed in the case that allowed nearly 350 current and former Goldman Sachs employees to choose continued participation in the class action over individual arbitration. The case was still pending with the arbitration effort, and a result is expected by the winter, Levin-Gesundheit said.
When Levin-Gesundheit is not in court or at the office, he enjoys hiking and backpacking, and like many other people during the pandemic recently took up a popular kitchen hobby: baking.
“I make my own bagels,” he said. “The reason I took that up is because I really wanted to have hot bagels, and I was having trouble finding someplace where I could get some hot out of the oven. So, I took it upon myself to make them.”
Levin-Gesundheit also dabbles in the garden and loves hitting Ocean Beach with his dog. And if all that doesn’t seem like enough, he and his wife are expecting their first child in September. “I think life might change a little bit,” he said.
In terms of what advice he would offer law students, Levin-Gesundheit said it’s fine to focus on what classes they’re taking, what their peers are doing and how they’re doing in school. And while those things matter, he believes those observations could be useful beyond the purpose of comparisons.
“I think what’s really important is to look around at the kinds of work the lawyers are doing and think about what you want to do,” he said. “What do you want your cases to achieve? Who are the people doing those things, and how did they get there? I think the same thing is true for young lawyers: Look around your organization. Figure out who are the people who are happy with the work they’re doing. Then find out how they got there.”
Getaway Spot: Gray Whale Cove State Beach
Recommended Reading: “True Grit” by Charles Portis
Alternate Job: Bagel shop proprietor
Words to Live By: “Treat others as you would like to be treated.”
2022 by the author.
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