'You're Not Gonna Wear Us Down'
Employment litigator Rachhana Srey rises to every challenge
Published in 2022 Minnesota Super Lawyers magazine on July 18, 2022
In 2011, Rachhana Srey, her colleague Anna Prakash, and Memphis trial attorney Billy Ryan were representing a class of 296 cable technician plaintiffs in a district courthouse in Tennessee. They were out to prove that management of cable installation company FTS had instructed the workers to underreport their hours. When the defense called the CFO of to the stand, Srey’s cross-examination, says Ryan, was a mic-drop moment.
“There was no prep time,” Ryan says. “Discovery had produced some financial information, and from that we were able to extrapolate how much the company was saving by not paying the workers overtime. Rachhana went up there and got the CFO to acknowledge and admit that the company had saved millions of dollars over many years by not paying overtime properly. The jurors’ jaws dropped. It was a heck of a cross.”
It’s also one of many examples in her career that prove, even when the pressure’s on, Srey is always ready.
Take the Minnesota case she handled alongside lawyers from Teske Katz. They argued a call center’s timekeeping plan—in which workers were clocked out if their computer went idle after two minutes—was unfair. They were decertified for the collective action and lost the class cert motion. But they didn’t give up.
“We said, ‘Look, just because the district court judge doesn’t think the case would be manageable in her court doesn’t mean we can’t refile,’” Srey says. They proceeded to do so in the eight states involved, and ultimately got a significant settlement for 16,000 workers.
“When she jumped on the case, I felt like everything just steamed ahead and my confidence level went way up,” says Paris Shoots, one of the call center employees. “She’s a bull. She just goes and charges right in.”
“We’ve tried several high-dollar, high-stakes cases together,” says Ryan, “and she always keeps her cool and delivers in the courtroom time and time again. When you’re in the trenches together, you get to see what somebody is made of. She’s insanely smart, an insanely hard worker, and is as strategic as they come in big-time cases where the stakes are high and there are a thousand moving parts. She knows where every document is, has a great memory, and is insanely organized.
“If you could go into a lab and make your perfect attorney, you would create Rachhana.”
Like many Cambodians during the rise of the Khmer Rouge under Pol Pot in the late 1970s, Srey’s parents were pushed out of the city of Battambang and into the killing fields. “Families were responsible for building their own shelters, but my dad didn’t have help to build a hut, so he asked the Communist leader if they could live in a chicken coop,” Srey says.
That bug-infested coop housed Srey’s parents—both math teachers—as well as her brother and sister. It’s also where Srey was born.
Two years later, in 1980, the family was in the Khao-I-Dang refugee camp on the border of Thailand when they were granted asylum. Because Srey had an uncle in Minnesota, they immigrated to Minneapolis, and were given $250 by Catholic Charities to start their life in America.
The family occupied a single room in a house with three or four other families until they could afford one of their own, in Bloomington, where Srey’s parents still reside. Her mom worked at ADC Telecommunications, while her dad worked in a kitchen and laundromat before getting certified as a mechanic.
“Once we got settled in, they changed our names to something more meaningful,” Srey says. “My middle name, Thach, is my former first name. Rachhana means ‘artistic composition,’ while my sister’s, Kannika, is ‘beautiful flower,’ and my brother’s, Veasna, means ‘destiny or fortune.’”
Despite her parents’ routine directives that “Cambodian girls don’t do that,” Srey says she tried—mostly unsuccessfully—to rebel as much as possible during her youth. “I did play basketball from fourth grade through high school, and the only reason is my friend across the street did and her parents were like, ‘We’ll take her.’ They kind of took me in as their second daughter.”
Excelling at math and science, Srey enrolled at University of Minnesota expecting to be a physical therapist or doctor. “But I did horrible, terrible, awful in my first-year math class and chem class, so I was talking to my mother and she says, ‘Well you like to talk a lot. You should be a lawyer.’”
Her talent for not backing down was already on display in her first week at William Mitchell College of Law. “In December of 2000, I learned I was pregnant, and I did not want this to spoil my future. I said, ‘Look, I’ll make it work,’” she recalls. “I moved into my parents’ house with my now-husband, and I had my baby two days after law school started. It started on a Thursday, and I was back by Thursday.”
Srey completed that year part-time, then took summer classes, a J-term and moot court to catch up and graduate in three years. She also had another child in that span, as her colleagues at Nichols Kaster may know.
“When I applied for the clerkship, I was a third-year, seven months pregnant, and at the end of the interview with Don Nichols, he goes, ‘If this works out, it’ll turn into an associate position,’” Srey says. “After working for two weeks, I asked him to take three months off to have my baby. He says, ‘Yeah, sure.’ Once I had my baby, I thought how nice he was to do that, so I came back within a week. Don goes, ‘You’re a tough cookie. Want a job here?’ The rest is history.”
Since 2007, Srey has primarily handled national class and collective action suits, usually wage and hour, but sometimes discrimination, on behalf of workers in a variety of industries. When she started, she handled a mix of individual employment cases, too.
“There’s this one—an FMLA case—where [my client] had some issues with drinking, and the employer perceived that as a disability and terminated him as a result,” Srey says. “What I remember is he was very lovely, very sweet, and at the end of the case, he made me zucchini bread.”
In another, the employer wanted her client to agree to a severance. “We normally would not agree, because I view that as retaliating against them for bringing claims. But he was like, ‘I was going to quit anyway, so if they want to pay me to quit, great,’” says Srey, who negotiated the severance. The client then used the money to buy a Winnebago—and a bouquet of flowers for Srey.
But, she says, “At some point, the amount of time and brainpower going into individual cases versus a 4,000-person class felt out of balance.” So she focused on the latter.
The most prominent case of her career is also the longest. After the mic-drop cross of the FTS CFO, the district court ruled in their favor. “It went to the Sixth Circuit, came back down to district court, went back up to Sixth Circuit, went to the Supreme Court, then back down. I was involved from the day the complaint was filed in 2008,” says Srey. “It’s now 2022 and the case isn’t final yet.”
While Srey, Prakash and Ryan split up the witnesses evenly, it was Ryan who took the lead on voir dire, opening and closing when the case originally went to trial in the fall of 2011. His ability to deliver with little to no preparation left an impression on Srey, who refers to him as her “trial sensei.”
Srey’s style is more orchestrated, she admits, although not as much as it was back then. “I prepare my outlines, but I don’t stick very tightly to them,” she says. “I’ll prepare a ton, then flow in the moment when I can see where the witness is going, what the jury is connecting with, or if the judge looks irritated.”
“Seeing things in real time, and reacting, is a skill and a talent,” Ryan says. “She definitely has a gift.”
“Last Monday,” Srey reflected this spring, “the Supreme Court denied the most recent petition for cert. The hope would be that’s it—the end.” But she’s not celebrating yet. She remembers the day her colleagues marked the 10-year anniversary and thought that was comical. “We’ve won at every turn. This is just what happens when the other side doesn’t want to pay. This is how much they can drag it out.”
The long timelines don’t get her down. “I don’t get jaded. That’s not my personality,” she says. “I feel bad for the clients because they don’t understand the legal system like we do, and it’s understandably frustrating for them. … Whenever it does end, at some point, they will get the check. That’s what matters.”
Early in her career, Srey took back-to-back cases with more than 200 depositions between them. “I was going from one state to the next, weeks at a time, and when people ask how, I just say, ‘I have a great family network and a very understanding husband,’” says the mother of three.
Nichols Kaster’s growing reputation has helped. “It used to be part of defendants’ strategy: Wear them down with all this discovery. That is why we have been successful. A lot of firms don’t have our resources, nor a person willing to trot all over the country to do it. Because we have, we’ve created a better landscape and people know: You’re not going to wear us down.”
A lot of Srey’s cases come from other firms looking to partner—because of the firm’s resources and expertise, but their collaborative approach doesn’t hurt, either. Every team member gets plenty of opportunities to shine, Srey says.
“It’s so fun to work with her,” says Kristine Nelson, a Nichols Kaster paralegal who has worked with Srey for 14 years. “She’s so good at finding the right role for people and then pushing them to do their best. She definitely recognizes the work that goes into being behind the scenes and is great about rallying the team to support someone who might need help.”
Above all, Nelson says, what makes Srey special “is her energy, and her way of energizing everyone else on the team. Maybe it’s because of her ability to relate to everyone, at every level.”
Shoots can attest to this on the call center case. “Even though she was clearly busy, she always kept in touch and gave me and the other class members updates. And towards the end, when the settlement came, she pushed hard for getting us more,” he says.
In March, Srey had just come off a 27-witness bench trial in Cincinnati. Her all-female team was asked to come on board in 2020 to represent a class of 4,500 logistics account executive trainees in a misclassification case. Before the defense was set to call the CEO to the stand, Srey called Ryan for his take on how she should approach it.
“He said, ‘Why don’t you just do your mic-drop cross?’” Srey says with a laugh.
“I said, ‘You know what he’s done; don’t let him get away with it. Don’t be indignant, but call him out,’” Ryan says. “I’m honored she looks to me, but she just needs to trust her instincts because she’s got it.”
While she won’t know the result until this summer, Srey is proud of her team. “Everyone put their head down and worked their butt off. It was very tiring, but very rewarding—knock on wood.”
She says it takes her two to four weeks to clear her mind after a trial like this—to “re-zhuzh” her brain. “I spent last Monday clearing out emails,” she says, “last Tuesday going ‘I should really get my hair cut,’ and Wednesday going ‘What do I work on next?’”
Sore Thumbs in Cambodia
“When I graduated from undergrad in 2000,” says Srey, “my brother was graduating from med school at the same time, so we did a trip with all of us. We turned out to be the largest people in the country. My brother is over 6 foot, I’m five-eight—pretty tall for Asians in general, especially Cambodians—so we just stuck out like a sore thumb. My dad is from this small town, and at the time he was the president of the Cambodian Society of Solidarity and Salvation. It was a nonprofit that he had formed here in Minnesota to raise money to give back to people in Cambodia. So they raised a bunch of money, and we went there, and everyone in that village got a bag of rice, all the teachers got supplies, and shirts, the kids got little backpacks. And they had a parade for our whole town. It was amazing.”