- Attorneys for a woman suing Wynn Resorts are questioning the appointment of a federal magistrate who was once the lead counsel for Wynn Las Vegas in the case.
- Angelica Limcaco's case had been dismissed because of the statute of limitations.
- Her attorneys are trying to get it reinstated.
Angelica Limcaco hasn't worked in Las Vegas since she blew the whistle on Steve Wynn, claiming to her supervisors he had raped one of her salon employees.
The former salon manager at Wynn Las Vegas claims she was fired, blacklisted and intimidated into silence — after she elevated her concerns in 2006 to then-president of Wynn Las Vegas, Andrew Pascal.
Limcaco filed a federal lawsuit in 2018 against Wynn Resorts founder and former CEO and Chairman Steve Wynn and Wynn Las Vegas under an Equal Opportunity complaint. Steve Wynn has emphatically denied any assault allegations.
So far, it's not going in Limcaco's favor. In April, Judge Miranda Du sided with Wynn Las Vegas and Steve Wynn when she ruled Limcaco had not made her claim within the statute of limitations.
But Limcaco's attorneys, including Jordan Matthews, argued that the time limits shouldn't apply because Limcaco feared for her personal safety. They claimed in court documents that Limcaco was warned, "that Mr. Wynn 'was more powerful than the police and that there may be people buried in the desert because of Mr. Wynn.'"
Further Limcaco alleges in the court complaint that one of her salon employees "was terminated and seemingly disappeared after alleging sexual assault by Mr. Wynn." The employee is believed to be the accuser to whom Steve Wynn paid $7.5 million in a settlement. The arrangement brought the scrutiny of The Wall Street Journal in 2018 and subsequently the gaming commissions of Nevada and Massachusetts, ending with $55 million in fines for Wynn Resorts.
Limcaco stayed silent for 12 years after her dismissal from the company.
Now, as her attorneys prepare for oral arguments in the 9th U.S. Circuit Court of Appeals later this month, they're questioning whether their client is getting a fair shake.
In a petition filed Tuesday, the lawyers raised the issue of the recent appointment of Elayna Youchah as magistrate judge in U.S. District Court in Nevada. Youchah previously had been with the law firm Jackson Lewis and was the lead counsel for Wynn Las Vegas in the Limcaco case.
"The circumstances and timing of the events surrounding Ms. Youchah's selection raise serious questions regarding the District Court's ability to remain impartial," the petition said.
Last April, the district court was alerted to a change in representation; another Jackson Lewis attorney was added as legal counsel for Wynn Las Vegas. About two weeks later, Du dismissed Limcaco's claims as "time-barred." Youchah in May became a magistrate judge in the Nevada federal district, where Du has since become her superior as the chief U.S. district judge.
In the brief filed in the 9th Circuit, Limcaco's attorneys do not allege outright impropriety and do not claim that Youchah had undue influence on Du's decision to dismiss Limcaco's case. They do point out that Youchah would have been applying to the court at the same time she was arguing Wynn's case there.
Youchah needed the majority vote of the active district judges to win the appointment to magistrate judge. It's not known which judges voted for her.
"If the district judge was considering and voting on Youchah's appointment while she was lead counsel in the case, you can see why a litigant might well question the district judge's impartiality when the litigant later discovers this connection," Keith Swisher, professor of legal ethics at the University of Arizona College of Law, told CNBC.
Experienced litigators may frequently argue cases before the courts to which they subsequently are appointed or elected. Limcaco's attorneys argue that there was a lack of disclosure about Youchah's application to the federal bench.
"It would have been more transparent — and presumably would have appeared less questionable — to the plaintiff and other litigants had they received notice of lead counsel's serious consideration for this federal appointment," Swisher said.
Limcaco's legal team makes their arguments later this month. They hope the appellate court reverses the decision and revive the case.
Wynn Resorts spokesman Michael Weaver said: "Because their opposition is to the federal district court, and not Wynn, we don't have a comment."