Malcolm Heinicke is a partner in the San Francisco office of Munger, Tolles & Olson. Mr. Heinicke joined the firm in November 1998 and was elected to the partnership in December 2003. His practice focuses on employment and complex commercial litigation, particularly in California and national 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 2015, 2014, 2013, 2012, 2011, 2010 and 2009 (click dates to view articles). He has also been recognized for his legal work by Chambers USA. In 2011, Mr. Heinicke was recognized by the national law publication Law360 as one of the top five employment lawyers under 40 in the nation.
Mr. Heinicke handles litigation and counseling matters for a wide variety of leading national and California clients, including 99¢ Only Stores, Bank of America/Merrill Lynch, Fortress Investments/Holiday Retirement, Guardsmark, Indeed, Morgan Stanley Smith Barney, Round Table Pizza, Smart & Final, Unisource, Wells Fargo and Yelp. Mr. Heinicke has trial, arbitration and appellate experience.
Some recent examples of employment matters handled by Mr. Heinicke include cases in which the client he was representing:
- Obtained a complete defense victory against a certified class of nearly seven thousand employees alleging failure to pay overtime following a nearly three-month arbitration hearing involving several dozen witnesses.
- Obtained a precedent setting victory before the Ninth Circuit (and a significant attorney fee award) in a California wage and hour class action despite (now reversed) DLSE administrative guidance against the client’s position.
- Obtained Ninth Circuit victory defeating a forced patronage class action challenging a common securities industry compliance practice on federal preemption grounds.
- 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.
- Obtained dismissal of representative allegations (and ultimately the case) in an action alleging failure to provide seating to cashiers in violation of state law.
- Obtained dismissal in Delaware bankruptcy case of a WARN Act class action seeking to hold investment company liable for termination notice violations of bankrupt company in which it invested.
- 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.
Some recent examples of commercial matters handled by Mr. Heinicke include cases in which the client he was representing:
- Obtained the dismissal of multi-state claims of false advertising and unfair business practices with respect to a novel pricing policy and associated advertising.
- Secured dismissal of claims asserting that online postings and advertising violated the Americans with Disabilities Act.
- Obtained dismissal of an action alleging breach of fiduciary duty against an equity investment fund.
- Won an arbitration concerning enforcement of a personal services contract (the client in this matter was a Hall of Fame baseball player).
Mr. Heinicke serves via mayoral appointment (first from Mayor Gavin Newson and now from Mayor Edwin Lee) as a member of the board of directors of the San Francisco Municipal Transportation Agency and 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 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.
Mr. Heinicke serves on the Board of Directors of the Bar Association of San Francisco. 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 also 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 and his wife, Meg; daughter, Charlotte; son, Alexander; and daughter, Greta, live in San Francisco. In his spare time, Mr. Heinicke plays baseball, golfs and enjoys local politics and California history.