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 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 2018, 2017, 2016, 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, Fidelity Investments, Indeed.com, Round Table Pizza, Square, Smart & Final, TIAA-CREF, Wells Fargo, Yelp and York Risk Services. Mr. Heinicke has trial, arbitration and appellate 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.
- 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
- 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.
Mr. Heinicke currently serves 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 serves via mayoral appointment (first from Mayor Gavin Newson and now from Mayor Edwin Lee) as the vice chair 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.
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 local politics and California history.