Malcolm A. Heinicke

Malcolm A. Heinicke

Malcolm Heinicke is a partner in the San Francisco office of Munger, Tolles & Olson, and he is the Co-Managing Partner of the firm.

Mr. Heinicke was a summer associate at the firm, and joined the firm as a lawyer out of his clerkship in November 1998. He was elected to the partnership in December 2003. His practice focuses on employment and complex commercial litigation, particularly in class and collective actions and employee mobility matters.

Mr. Heinicke was selected by the Daily Journal as one of the top labor and employment attorneys in California in 202220212020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010 and 2009. He has also been recognized for his legal work by Chambers USA.

Mr. Heinicke handles litigation and counseling matters for a wide variety of leading national and California clients, including 99¢ Only Stores, Bechtel, Conduent, Fidelity Investments, Flexport, GardaWorld, Instacart, Plains All American, See’s Candies, Square, Wells Fargo, Yelp and York Risk Services. Mr. Heinicke has trial, arbitration and appellate experience.

Mr. Heinicke served as the 105th president of the Bar Association of San Francisco. Prior to serving in this role, he served on the board of directors of the Bar Association of San Francisco and on the board of directors of its legal services and diversity program. He is a past president of the Barristers Club of the San Francisco Bar Association and past chair of the Labor and Employment section of the Barristers Club.

Mr. Heinicke served via mayoral appointment (first from Mayor Gavin Newsom and then from Mayor Edwin Lee) as the Chair of the Board of Directors of the San Francisco Municipal Transportation Agency, the city agency that oversees public transportation, traffic and parking in San Francisco. Mr. Heinicke received this appointment after serving as a Taxicab Commissioner. Mr. Heinicke served in these roles for over 14 years, making him one of the longest serving transportation commissioners in City history. Mr. Heinicke previously served via appointment by former Mayor Willie Brown as chair of the San Francisco Human Rights Commission, the body charged with overseeing and enforcing the City’s anti-discrimination laws and policies, as well as its preferential contracting programs.

During his time at the SFMTA, Mr. Heinicke championed several key City projects including the Better (car-free) Market Street Program and the West Portal Optimization and Crossover Activation Project, a change in rail configuration that allows for more efficient shuttle service in the subway tunnel. In honor of his work for the City, and after he served the maximum number of terms, the City named the West Portal crossover after Mr. Heinicke and installed a plaque at the West Portal Station commemorating the honor: Malcolm Heinicke Crossover.

In addition, Mr. Heinicke serves on the board of the Say Hey Foundation, the charity founded and headed by baseball legend Willie Mays, which is dedicated to helping children’s causes.

Mr. Heinicke is a native Californian. He, his wife Meg and their children Charlotte, Alexander and Greta live in San Francisco. In his spare time, Mr. Heinicke plays baseball, golfs and enjoys coaching youth sports, local politics, public transit and California history.

Experience

Mr. Heinicke has obtained favorable outcomes for clients in a range of matters, as outlined below.

Class and Collective Actions

  • Won a complete defense victory for a major international contractor against a certified class of more than 7,000 employees alleging failure to pay overtime following a nearly three-month arbitration hearing involving several dozen witnesses. This victory was recognized as a Top Defense Verdict of the Year by the Daily Journal.
  • Obtained first-of-its-kind summary judgment on behalf of a multinational private secured transportation firm, holding as a matter of law that it could use “on-duty” meal periods for armored car driver-messengers and that related rest period claims were preempted by federal law. This victory was recognized as a Top Defense Verdict of the Year by the Daily Journal.
  • Secured a California Court of Appeal and superior court victory for a major manufacturer/retailer denying certification of a state-wide class action claiming failure to provide meal periods and failure to compensate retail employees for purported off-the-clock work allegedly required by scheduling mandates.
  • Secured a precedent-setting summary judgment ruling and denial of collective action certification for a major financial services institution in a case alleging the misclassification of financial advisors.
  • Obtained a precedent-setting victory before the Ninth Circuit (and a significant attorney fee award) for a national security firm in a California wage and hour class action despite (now reversed) DLSE administrative guidance against the client’s position.
  • Obtained a Ninth Circuit victory defeating a forced patronage class action challenging a common securities industry compliance practice on federal preemption grounds.
  • Obtained the dismissal of representative allegations (and ultimately the case) in an action alleging failure to provide seating to cashiers in violation of state law.
  • Defeated class certification and obtained summary judgment and an award of attorney fees in a statewide wage and hour class action alleging rest period and uniform maintenance claims.
  • Secured the dismissal of misclassification and improper deduction claims on behalf of a putative class of financial representatives.
  • Obtained summary judgment and an award of attorney fees in a case alleging race and age discrimination against an international entertainment company.
  • Obtained summary judgment and a significant award of costs in a case alleging race and age discrimination against a national retailer.

Employee Mobility and Trade Secret Matters

  • Obtained a rare injunction in San Francisco Superior Court precluding competition from a company’s former manager after he started a competing business and attempted to take over a significant contract.
  • Defeated a request for a temporary restraining order in a federal case alleging theft of trade secrets and employee raiding against a startup company.
  • Successfully represented a high-level technology executive in multi-forum litigation concerning employee mobility to a California employer from an out-of-state rival.
  • Obtained a temporary restraining order for a national distribution company against an employee moving to a competitor firm and seeking to transfer accounts.
  • Successfully represented a high-tech startup and its individual founders against claims of trade secret theft and breach of fiduciary duty by the former employer of several founders.

Commercial and Business Matters

  • Successfully represented a major national bank in obtaining a unanimous jury verdict against a former high-level employee who alleged that a workplace call in connection with a multibillion-dollar foreign exchange transaction had been illegally recorded.  This victory was recognized as a Top Defense Verdict of the Year by the Daily Journal.
  • Obtained on behalf of a national retailer the dismissal of multi-state claims of false advertising and unfair business practices with respect to a novel pricing policy and associated advertising.
  • Obtained dismissal in a Delaware bankruptcy case of a WARN Act class action seeking to hold an investment company liable for termination notice violations of the bankrupt company in which it invested.
  • Won the dismissal of a class action alleging false advertising and unfair business practices with respect to a purported bait and switch advertising and pricing system.
  • Secured the dismissal of claims asserting that online postings and advertising violated the Americans with Disabilities Act.
  • Obtained the dismissal of an action alleging breach of fiduciary duty against an equity investment fund.
  • Won an arbitration on behalf of a Hall of Fame baseball player concerning enforcement of a personal services contract.

Experience

Mr. Heinicke has obtained favorable outcomes for clients in a range of matters, as outlined below.

Class and Collective Actions

  • Won a complete defense victory for a major international contractor against a certified class of more than 7,000 employees alleging failure to pay overtime following a nearly three-month arbitration hearing involving several dozen witnesses. This victory was recognized as a Top Defense Verdict of the Year by the Daily Journal.
  • Obtained first-of-its-kind summary judgment on behalf of a multinational private secured transportation firm, holding as a matter of law that it could use “on-duty” meal periods for armored car driver-messengers and that related rest period claims were preempted by federal law. This victory was recognized as a Top Defense Verdict of the Year by the Daily Journal.
  • Secured a California Court of Appeal and superior court victory for a major manufacturer/retailer denying certification of a state-wide class action claiming failure to provide meal periods and failure to compensate retail employees for purported off-the-clock work allegedly required by scheduling mandates.
  • Secured a precedent-setting summary judgment ruling and denial of collective action certification for a major financial services institution in a case alleging the misclassification of financial advisors.
  • Obtained a precedent-setting victory before the Ninth Circuit (and a significant attorney fee award) for a national security firm in a California wage and hour class action despite (now reversed) DLSE administrative guidance against the client’s position.
  • Obtained a Ninth Circuit victory defeating a forced patronage class action challenging a common securities industry compliance practice on federal preemption grounds.
  • Obtained the dismissal of representative allegations (and ultimately the case) in an action alleging failure to provide seating to cashiers in violation of state law.
  • Defeated class certification and obtained summary judgment and an award of attorney fees in a statewide wage and hour class action alleging rest period and uniform maintenance claims.
  • Secured the dismissal of misclassification and improper deduction claims on behalf of a putative class of financial representatives.
  • Obtained summary judgment and an award of attorney fees in a case alleging race and age discrimination against an international entertainment company.
  • Obtained summary judgment and a significant award of costs in a case alleging race and age discrimination against a national retailer.

Employee Mobility and Trade Secret Matters

  • Obtained a rare injunction in San Francisco Superior Court precluding competition from a company’s former manager after he started a competing business and attempted to take over a significant contract.
  • Defeated a request for a temporary restraining order in a federal case alleging theft of trade secrets and employee raiding against a startup company.
  • Successfully represented a high-level technology executive in multi-forum litigation concerning employee mobility to a California employer from an out-of-state rival.
  • Obtained a temporary restraining order for a national distribution company against an employee moving to a competitor firm and seeking to transfer accounts.
  • Successfully represented a high-tech startup and its individual founders against claims of trade secret theft and breach of fiduciary duty by the former employer of several founders.

Commercial and Business Matters

  • Successfully represented a major national bank in obtaining a unanimous jury verdict against a former high-level employee who alleged that a workplace call in connection with a multibillion-dollar foreign exchange transaction had been illegally recorded.  This victory was recognized as a Top Defense Verdict of the Year by the Daily Journal.
  • Obtained on behalf of a national retailer the dismissal of multi-state claims of false advertising and unfair business practices with respect to a novel pricing policy and associated advertising.
  • Obtained dismissal in a Delaware bankruptcy case of a WARN Act class action seeking to hold an investment company liable for termination notice violations of the bankrupt company in which it invested.
  • Won the dismissal of a class action alleging false advertising and unfair business practices with respect to a purported bait and switch advertising and pricing system.
  • Secured the dismissal of claims asserting that online postings and advertising violated the Americans with Disabilities Act.
  • Obtained the dismissal of an action alleging breach of fiduciary duty against an equity investment fund.
  • Won an arbitration on behalf of a Hall of Fame baseball player concerning enforcement of a personal services contract.