Sean Penn rejected a deal any company would take and won at trial

Mathew Rosengart drove up to Malibu with what he thought was a victory. Rosengart, a trial lawyer and former federal prosecutor who represents Sean Penn, had spent a year in talks with the federal labor board and won an offer with what Rosengart described as "no lawsuit, no fine. no monetary penalty at all, no admission of wrongdoing."

Penn listened, thanked him for the hard work, and then took a drag off a cigarette. Could they go another way, he asked. Could they tell the government, in this case the National Labor Relations Board, to go pound sand?

The fight was about Penn's disaster-relief nonprofit, Community Organized Relief Effort, known as CORE. At the height of COVID, CORE ran a testing and then vaccination site at Dodger Stadium in Los Angeles, and later operations around the country and the world. A major newspaper, which Rosengart recalled as the New York Times or the Los Angeles Times, published a glowing account of the work, which involved what Rosengart described as "hundreds of thousands of tests and vaccinations" and which Rosengart said saved lives.

Buried in that story were a couple of anonymous comments from CORE staffers about working conditions as the site converted from testing to vaccinations. The comments were not critical of Penn or CORE, but of then Mayor Eric Garcetti. Penn, who treated the effort as a paramilitary wartime operation, wrote staff a mission statement letter saying that if they were not up for intense pressure work, they did not have to work there.

A labor lawyer filed a charge over the letter, arguing on what Rosengart called a novel theory that it was "an implicit threat and therefore an unfair labor practice." The labor board followed up and brought a charge against Penn and the organization.

That is what made the settlement offer look like a total win. Rosengart said any corporate general counsel would have taken it, patted the lawyer on the back, and moved on. Rosengart said the settlement "would have been the equivalent of posting in a kitchen in corporate America what your rights are as an employee."

Penn saw it differently. Even without an admission, he viewed this settlement as a compromise he could not live with. He wanted a public vindication, and he told Rosengart to go to trial.

Rosengart called Penn the best trench partner he could have. Win, lose, or draw, Penn would not second-guess the decision to go to trial. Penn was set to be the first witness, a star witness who was literally a star. After the government put on its case, Rosengart argued a motion for a directed verdict, a request that the judge throw the case out, for a full hour instead of the usual pro forma five minutes.

The judge granted the motion and dismissed the case. Penn, who had asked if he had to testify the next day and had been told to be ready, never took the stand.