Overview
Malcolm Heinicke represents corporations in complex employment and commercial litigation, with a focus on class and collective actions and employee mobility matters. He also counsels high-level executives on employment and career planning.
Top-ranked by Chambers USA for Labor & Employment law, Malcolm has also been selected by the Daily Journal as one of the top labor and employment attorneys in California every year since 2009.
He has handled trials, arbitrations, appeals and counseling matters for a wide variety of leading national and California clients, including Bechtel, GardaWorld, General Dynamics, Johns Manville, Plains All American, See’s Candies and Wells Fargo.
He 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.
Malcolm is a native Californian. He and his wife and their three children live in San Francisco. In his spare time, he plays baseball, golfs and enjoys local politics, public transit and California history.
Capabilities
Experience
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.
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.
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.
As amicus counsel for the securities industry, obtained an order from the Delaware Supreme Court confirming the application of the employee choice doctrine.
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.
Government and Civic Work
Malcolm was elected and served as the 105th president of the San Francisco Bar Association. Prior to serving in this role, he served on the Board of Directors of the organization for five years, and prior to that, he was elected and served as the president of the Barristers Club of the San Francisco Bar Association and as the chair of its Labor and Employment section.
Malcolm 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. Malcolm received this appointment after serving as a taxicab commissioner and served in these roles for over 14 years, making him one of the longest serving transportation commissioners in city history.
During his time at the SFMTA, Malcolm 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 of San Francisco named the West Portal crossover after him and installed a plaque at the West Portal Station commemorating the honor: Malcolm Heinicke Crossover.
Malcolm also 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.
More
- Chambers USA – Band 1, Labor & Employment, 2024
- Top Labor and Employment Attorney in California, Daily Journal, 2009-2024
- The Best Lawyers in America, 2024-2026
Malcolm serves on the board of the Say Hey Foundation, the charity founded by baseball legend Willie Mays, which is dedicated to helping children’s causes. Malcolm also served as personal counsel to Mr. Mays’ until his passing in 2024, and Malcolm delivered a eulogy for Mr. Mays at his memorial in the San Francisco Giants’ baseball stadium.
