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Ed. Note: Welcome to our daily feature Trivia Question of the Day!
According to data collected by ALM for their 2020 Am Law 200 ranking, which firm ranked in the “Second Hundred” (101-200) had the largest percentage increase in revenue this year?
Hint:The firm’s RPL went up 15.7 percent
See the answer on the next page.
Yesterday, Michigan joined Indiana in offering an online bar exam this summer in lieu of forcing students to pack into a convention center. Right on queue, the first online administration of the LSAT offered welcome news for online haters with tales of glitchy security problems — exactly the sort of stumbling blocks that the NCBE claims prevents them from moving the UBE online.
As Law.com has it:
Most of criticism leveled by early LSAT Flex takers on the popular online forum discussion Reddit was directed toward the online proctors, which were supplied by ProctorU—a third-party test security vendor. ProctorU provides live proctors who monitor test takers through the cameras and microphones of each taker’s computer. ProctorU also uses artificial intelligence and humans to review recorded video from those computers to catch cheating. But some Reddit users said their proctors were an hour or more late to log them into the test, leaving them hanging at an already stressful time.
This tracks what we heard from tipsters, who also identified ProctorU as the weak link:
Just finished taking the LSAT-Flex. Apparently, lots of people had a long wait for a proctor after they signed in. Other people are talking about issues with proctoring. My proctor took over my cursor for several minutes during the analytical reasoning section. A friend’s proctor disappeared and she isn’t sure if her test submitted while another person’s test just shut off in section 1 and when she tried to re open it it said test submitted and the proctor was gone.
So much for the panopticon.
While we’re going to hear a lot about these breakdowns, the real lesson to draw from this is that the test ran pretty smoothly all things considered. This process was rushed into place due to the pandemic and frankly it’s impressive it worked at all. There are definitely folks with vested interests in maintaining the bar exam status quo, but glitches are invitations to more experimentation, not support for shutting everything down.
If people want a full-complement bar exam in 2020, they’ll need to offer it online. It’s as simple as that. Figure out how to get the proctoring right because failure isn’t really an option here. The longer states drag out this decision, the more difficult it will be to have a real exam.
Online LSAT Makes Its Debut—With a Few Glitches [Law.com]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
After already announcing monthly partner distributions would be capped and retirement benefits cut, Dorsey & Whitney has gone back to the austerity measures drawing board. Yesterday, in a firmwide video call, additional cost-cutting — in the form of layoffs and salary cuts — were announced.
As a tipster at the firm tells Above the Law, the salary cuts are in ranges for those making over $150,000 and, it what many perceive as a change in course, announced an unspecified number of layoffs of both attorneys and staff:
Dorsey Whitney announced an unspecified number of terminations (attorneys and staff) and salary cuts in a video from the managing partner yesterday. Salary cuts are: 10-20% for income partners, 15-20% for of counsel, “generally” 15% for associates (with opportunity for true-up at end of year), 15-20% for management level staff making over $150k. No explanation was given for the vague ranges. The firm had been discussing the possibility of salary cuts for weeks and even solicited associate feedback on the matter, but had until now signaled strongly that they were not considering layoffs at this time.
And a shortened, virtual summer associate program and a delayed start for the new class of associates is also being implemented:
Additionally, early this morning, the incoming first year associates were informed that their start dates would be deferred to January 2021, and the summer associate class will be entirely virtual.
As reported by Law360, the firm provided comment on the cuts:
“After intense deliberation, we made these hard decisions so that we will continue to be a strong, efficient law firm,” Dorsey & Whitney managing partner Bill Stoeri said in a statement. “I am extremely grateful to all of those who have served the firm, and for those who will continue to work to serve our clients in this new environment.”
The firm also said billable hour guidelines for associates would be reduced for the year and there will be special productivity bonuses for especially busy attorneys.
If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).
If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
No. 1 is if they haven’t already developed a social media presence to do so through building up a personal brand, which I will probably be speaking about or tweeting about in the future. I would also say that you’re not alone. I and plenty of others are here to help and support you to the extent that we can. And network. Continue to chat with people. Continue to learn about what others are doing, learn from them about how they’ve gotten through other difficult times in their careers. And really focus on what makes you happy and what you really want to be doing and then relentlessly pursue avenues that will help you achieve that goal.
— Colin Levy, former General Counsel at Salary.com, tells Corporate Counsel what he would tell other in-house attorneys who have also lost their jobs. Levy’s frank Tweet about getting let go amid a pandemic is making the rounds, and gives a glimpse into the personal impact of businesses’ austerity measures.
(Photo by Joe Raedle/Getty Images)
What kind of diplomatic protocols require the office manager to walk around with a whip? We know the State Department hosts some wild parties — at taxpayer expense, of course — but whips? Really?
Politico reports that recently fired State Department Inspector General Steve Linick had just completed a report relating to former head of the protocol office, Ambassador Sean Lawler. Lawler left his post abruptly in June 2019 amid stories that his unorthodox management style left something to be desired. NBC wrote at the time, “[N]umerous employees in his office had resigned in protest of his management and behavior. Among the behaviors that had caused concern, according to two U.S. officials, is that Lawler was known to carry a whip at work in what was perceived as an attempt to intimidate colleagues.”
HR lawyers, start your engines!
Lawler was succeeded by his deputy Cam Henderson, who now heads the Office of Protocol. It is this office which is currently under fire for arranging taxpayer funded dinners for Secretary and Mrs. Pompeo with “thought leaders” such as Reba McEntire and Dale Earnhardt, Jr.
It’s not clear whether those dinners were also the subject of a current IG investigation, but according to Politico, Linick had recently completed a report on Henderson’s handling of complaints about Lawler during his tenure. Apparently Henderson failed to respond appropriately to concerns about her boss’s aggressive, intimidating behavior.
The inspector general had investigated further claims that Henderson, while Lawler’s deputy, had violated State Department policy by not reporting allegations involving Lawler and workplace violence to higher-ups. The person said Linick’s office had determined Henderson likely had violated regulations and that the State Department should take appropriate action.
According to NBC, Linick contacted the Office of Protocol last week, just hours before he was abruptly fired by the president at Pompeo’s request on Friday night.
Pompeo defended the propriety of terminating the employee who was investigating his own misuse of government employees and arms sales to Saudi Arabia, in addition to the problems at the protocol office.
“I went to the president and made clear to him that Inspector General Linick wasn’t performing a function in a way that we had tried to get him to, that was additive for the State Department, very consistent with what the statute says he’s supposed to be doing,” he told the Washington Post.
Then he dispatched State Department spokesman Brian Bulatao to imply that Linick was a leaker who had to be fired immediately because of a story that appeared more than six months ago, saying “You know the IG is normally charged with carrying out the investigation. It certainly was a very strong finger-pointing at IG Linick’s way.”
Pompeo remained defiant at a press conference this morning, falsely insisting to reporters, “I have no sense of what investigations were taking place inside the inspector general’s office. Couldn’t have possibly retaliated for all the things.”
“I’ve seen the various stories, that someone was walking my dog to sell arms to my dry cleaner,” Pompeo joked. “I mean, it’s all just crazy. It’s all crazy stuff.”
After smearing Linick, the Secretary concluded his remarks by insisting that he was simply unable to discuss the actual reason for the IG’s firing. “Unlike others, I don’t talk about personnel matters. I don’t leak to y’all.”
Because Mike Pompeo is deeply devoted to adhering to HR best practices. You bet!
Fired State Department watchdog was probing protocol office [Politico]
Pompeo says he didn’t know fired inspector general was investigating him [WaPo]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.
Look, I’m not here to promote harmful regional stereotypes. I know you might think Southerners are all driving around with shotguns in their pickup trucks, ready to blast holes in whatever creatures or perceived threats cross their paths, but that’s just not reality, because this time it was a guy in Minnesota.
Travis Duane Winters, age 34, of Butterfield, Minnesota, was charged with two felony counts last week for allegedly gunning a $1,900 drone out of the sky. Although the need for that “allegedly” is questionable: it seems Mr. Winters readily admitted he was the one who shot the drone (as a hunter myself, I recognize the pride of a skilled marksman when I hear it).
The drone’s operator was apparently attempting to capture images of chickens that he claims were being “slaughtered” at a local food production plant because of the pandemic. Which … doesn’t seem to be particularly newsworthy. Slaughtering chickens is kind of what a chicken processing plant does. Anyway, when you spend $1,900 on a drone, I suppose you have to come up with something to do with it, and shortly after two people came over to ask the drone’s owner what exactly he was doing, Winters showed up, shotgun in hand, to dispatch his metallic foe like a low-rent John Connor.
Winters was charged with criminal damage to property and reckless discharge of a weapon within city limits, and is facing justice in Watonwan County District Court. But what really surprised me was some of the reporting on this that said that, in the eyes of the Federal Aviation Administration, shooting down a privately owned drone is also illegal under the same federal aviation laws that make it illegal to shoot down passenger aircraft.
Turns out, under 18 U.S. Code § 32, whoever willfully “sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States” may be fined and/or imprisoned for up to 20 years. The definition of “aircraft” for the purposes of this statute is incredibly broad, and could certainly cover drones, if not paper airplanes. There is some stuff later in the statute about aircraft being used in interstate commerce (which those of us who’ve been through law school and remember Wickard v. Filburn wouldn’t find particularly limiting as to the federal regulation of a drone hovering over your own home), but a court wouldn’t even really have to resort to an interstate commerce analysis because the “special aircraft jurisdiction of the United States” by statutory definition includes literally any aircraft in flight in the United States. I guess it’s sort of like the navigable waters of the sky.
On the face of this statute, it looks like yes, it is indeed just as illegal to down a drone as an airliner. Of course, there would be a bunch of other crimes one would commit by shooting down a passenger aircraft. Murder comes to mind. Still, while the FAA doesn’t distinguish between drones of any size and any other aircraft for the purposes of 18 U.S. Code § 32, the feds have thus far been content to largely let states deal with drone shooters on their own.
So, it is definitely illegal to shoot down a drone, and it is probably illegal under a variety of laws depending on where you happen to be. What is less clear is whether a drone can ever be the means of committing a trespass when it is flying over private property. Modern courts haven’t addressed this question clearly or consistently, and maybe the closest national precedent we have is a 1946 Supreme Court case which said that although “the airspace is a public highway,” that did not include “the immediate reaches above the land.” (the case is United States v. Causby, and was about landowners who had to suffer planes repeatedly gliding toward a nearby runway at just 83 feet above their property).
If you see a drone somewhere you don’t think it should be, my suggestion, rather than reaching for the ol’ shotty in the corner, would be to call local law enforcement. Don’t bother calling me though; I’ll be busy digging a tiger trap for the Roomba.
Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.
(Image via Getty)
Gender equality is given a lot of lip service in the legal profession, and yet women continue to face many disparities when they head into the office each and every day. From pay to partnership promotions to the composition of leadership committees to family policies, there are many areas where law firms must change to keep up with the times. Thankfully, some law firms are becoming more progressive, but which firms are doing the best they can for women in all areas?
For the second year in a row, the Yale Law Women have released a ranking of the Top Firms for Gender Equity, coupled its annual list of the Top Family-Friendly Firms. We’ve written about the latter ranking every year (see our coverage from 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and 2008), and covered YLW’s important new dual ranking for the first time last year (2019).
Which firms made the cut in 2020? Let’s take a look at the latest rankings.
This year’s list is different from all prior ones produced by the Yale Law Women. This time around, they’ve eschwed a Top 10 ranking altogether. From the report:
Recognizing the individualized experiences and distinct needs of law firm employees, as well as the multitude of factors leading to workplace equity, we are no longer publishing holistic Top Ten lists. Instead, individual firms are honored for excelling in specific categories that relate to overall gender equity and family friendliness. Our report attempts to respect the diverse needs and preferences of those in the legal profession with the understanding that creating equitable workplaces will not entail a one-size-fits-all solution.
This year’s rankings were based off seven distinct categories, with honors given reflecting top firms’ strengths. Without further ado, these are the firms being honored:
Here’s a round-up of useful information about some of the YLW study’s findings:
- Among equity partners, women averaged 21%
- 29% of non-equity partners at the average firm identified as women
- 65% of firms required implicit bias training for all employees
- 36% of attorneys promoted to equity partner at the average firm identified as women
- 7% of attorneys promoted to equity partner at the average firm identified as women of color
- 4% of associates worked part-time schedules at the average firm
- Among associates who worked part-time schedules, women averaged 83%
- 63% of firms promoted someone who had taken caregiver leave in the last five years to equity partner in 2019
- 90% of firms offered equal caregiver leave for birth and adoption of a child
- 90% of firms had a committee specifically designed to address work-life balance
And now, a word on mandatory arbitration agreements. This has become a very hot-button issue in Biglaw, and given that law students are taking to the streets to do away with agreements that seek to strip them of their rights, of course the Yale Law Women delved into the topic. Here are the relevant details:
Reporting firms that do not require mandatory arbitration contracts covering at least some types of dispute as a condition of employment:
Junior & Senior Associates: 47%
Equity Partners: 38%
Other Attorneys: 43%
Non-Legal Employees: 36%Reporting firms that do not require mandatory arbitration contracts covering allegations of sexual assault or sexual misconduct as a condition of employment:
Junior & Senior Associates: 47%
Equity Partners: 41%
Other Attorneys: 43%
Non-Legal Employees: 46%Reporting firms that do not require non-disclosure agreements covering allegations of sexual assault or sexual misconduct as a condition of employment:
Junior & Senior Associates: 48%
Equity Partners: 46%
Other Attorneys: 45%
Non-Legal Employees: 47%
Now you know what you may be up against if you decide to sign on the dotted line with any of the Biglaw firms surveyed for these important rankings.
Please click here (PDF) to see the full report from Yale Law Women.
While vast improvements have been made in terms of gender equity and parental accommodations offerings at large law firms, there is still a lot of work to be done. We said this in the past, but it bears repeating in times like these: “The legal profession has come a long way in terms of attempting to afford equal opportunities for success for both men and women, but it’s still got a long way to go. Why are lawyers still hurrying up and waiting for change?” Be forces for good at your firms. Women deserve to be treated equally, and allies have never been more important. Offer help where help is needed, and together, we can achieve true greatness.
Congratulations to all of the Biglaw firms that made the Gender Equity rankings and the latest edition of the Yale Law Women Family-Friendly Firm and How did your firm do? Email us, text us at (646) 820-8477, or tweet us @atlblog.
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
(Image via Getty)
As many people predicted, the ongoing COVID-19 pandemic has motivated numerous individuals to consider law school. Of course, it may sound appealing to ride out the current economic environment in academia, even though students may have to pursue online learning for months to come, and this might not be the best time to attend law school. In fact, much more people than usual have been reaching out to me for law school advice, and many questions are especially tricky to answer given the complexities of the current environment. Since I transferred law schools during my legal education, many people have asked me questions about the transfer process. Some prospective law students seem to have misconceptions about the transfer process that are especially important to keep in mind during the time of COVID-19.
Many people justifiably think that attending a top law school may not be what it’s cracked up to be next semester because numerous campuses may be closed. If law students will simply be at home learning online next semester, it matters less where they attend law school for that time. Of course, some benefits of attending a top law school include being on campus, meeting classmates, attending events, hearing speakers, and participating in clubs, all of which may be difficult to do remotely.
In addition, if law schools continue pass/fail options while students are forced to pursue online learning, there may be less motivation to attend better law schools that cost more money. Such pass/fail options may make it difficult for students to distinguish themselves at a top law school, and they may simply wish to satisfy credits at any law school for the time being. All of these conditions seem to be motivating some law students to pick cheaper and lower-ranked law schools for their first year of study. Such students think they might be able to transfer law schools after their first year after campus life presumably returns to normal and the credits they obtained at a cheaper price can still be used to obtain a JD.
I can certainly empathize with students not wanting to attend a top university when they will likely be forced to take classes online in their parents’ houses. Some news outlets have discussed this dilemma of many college students, and I wrote an article about this for my student debt blog. And it is true that a decent amount of law students are able to transfer to other schools during the course of their legal education. However, I would caution prospective law students about picking a law school with the expectation of transferring for a number of reasons.
The main reason why you should not pick a law school with the expectation of transferring after your first year is that only a small minority of students are able to transfer to better schools. The most important factor that is used when assessing transfer applicants in a normal year is a student’s grades during their first year of law school, as opposed to regular law school admissions where college grades and LSAT scores are more important. If law schools continue pass/fail programs into the fall semester, it is possible that transfer candidates may only have one semester of actual letter grades to show admissions officials when trying to transfer.
As many lawyers understand from first-hand experience, law school grades are extremely arbitrary. For instance, I received almost all As in my first semester of law school, and did much worse during my second semester of law school, even though I buckled down during those months and tried even harder than before to earn top marks. Most law school classes are graded on one final exam at the end of the course, and small errors, illnesses, exam irregularities, and other issues can all impact grades.
Many first-year law students who excelled in college have been confronted with horrible grades during their first year of law school. Even if you commit yourself to studying hard and working your tail off, you cannot guarantee that you will be able to transfer law schools. As a result, it is important to select a law school that you will be able to enroll at for the long haul in case you are unable to transfer.
Furthermore, there may be reasons why you would not want to transfer after your first year of law school that do not relate much to grades. For instance, it is oftentimes more difficult to earn spots on journals and other accolades if you transfer rather than enroll at a law school for all three years of your legal education. In addition, it might be difficult to pursue study-abroad programs, work at certain clinics, or pursue other opportunities as a transfer student. As such, you may eventually decide not to transfer schools even though you could have had such opportunities at a better school if you enrolled there from the beginning.
All told, I can see why students would want to choose the cheapest and most convenient option for their first year of law school given the realities of COVID-19. If law school classes continue to be online in the fall, it might make sense to take courses at one school and transfer to another school when conditions improve. However, students should not pick a law school with the expectation of transferring, since transferring law schools can be impractical or impossible in a number of situations.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.
On May 1, 2020, the California Court of Appeals issued its ruling in Robertson v Saadat. The case arose from an unusual fact pattern, which, if you’re a regular reader of this column, is a phrase that you’re probably getting used to me saying.
A grieving widow had been prevented from using her husband’s sperm after the sperm bank where it was stored admitted that it “could not locate” the sperm. … Record scratch. Wait, where did the sperm go?
Let’s back up for a moment. All the way to simpler times, in 2004.
The widow in the case is Sarah Robertson, who lost her husband, Aaron Robertson, in 2004. Aaron Robertson died from complications related to a rare genetic condition called Marfan Syndrome. Before Aaron passed away, and while he was unconscious in a coma, Robertson requested that her husband’s sperm be retrieved and cryopreserved, for possible future use to start a family.
That’s not as strange as it might sound to some people. The couple had deeply hoped to have children together. And Robertson thought that some day, technology would advance to the point where doctors could screen embryos for Marfan Syndrome, so the condition would not be passed along. A UCLA Medical Center ethics panel reviewed the case, approved it, and went ahead and conducted the retrieval for Robertson’s requested use. Six vials were transferred for storage to Tyler Medical Center, an entity that was later purchased by Dr. Peyman Saadat.
Ten years later, in 2014, Robertson sought fertility treatment. So she asked that Saadat transfer the vials — which she had been paying storage fees on for 10 years — to UCLA Medical Center. That’s when she learned there was an issue. First, the clinic claimed that the vials were destroyed in a fire. Except the fire had occurred more than a year prior to when the bank even received the vials in the first place. When that excuse fell, the clinic looked a little harder, now claiming that they couldn’t locate five of the six vials. But the seemingly good news was that they had located one vial. Great! At least there was one.
But things kept going south. Per the complaint, Saadat then “made repeated and unsolicited efforts to coerce and intimidate Plaintiff to allow him” to perform the fertility treatment instead. That’s aggressive behavior for a medical clinic. According to Robertson, when she insisted that no, she wanted the vial transferred to UCLA, the clinic responded by saying that actually, the one vial that they *thought* was her husband’s sperm was actually not, and instead was just a different patient’s sperm who had the same first name as her deceased husband, Aaron. Oh wow.
Unsurprisingly, plaintiff alleges that the clinic never found that one last vial of her husband’s sperm, “and instead intended to impregnate her with sperm from another donor.” I mean, these are just the allegations in the complaint. But yeah, that’s definitely an inference someone could make.
Did the Clinic Impregnate Other Patients With Robertson’s Husband’s Sperm?
Robertson further alleged that defendants used her husband’s sperm to impregnate other patients of the clinic, without those patients’ knowledge or consent. If that’s true, says Robertson, there could be disastrous consequences, since those children might have inherited her husband’s genetic condition.
But the court dismissed this accusation, concluding that the clinic’s misuse of her husband’s sperm had no bearing on plaintiff’s damages, and that plaintiff has no standing “to assert claims on behalf of those women.” So for the time being, the clinic is off the hook for other possible misconduct.
No Legal Right To Use The Sperm.
Despite the UCLA ethics board’s decision to approve Robertson’s request for her husband’s sperm, the Court nevertheless concluded that California State law requires that the gametic provider create a formal writing of their intent to provide sperm or eggs to be used for conception after their death. And while UCLA found the letters and other evidence of the husband wishing to have children with his wife sufficient, the Court found that they were not relevant, as they did not specify his intent for his sperm to be used after his death.
California’s Court of Appeals decision is out of step with other recent judicial thinking on posthumous conception. Last year in Massachusetts, a court was willing to support the parents’ request for a retrieval after their son, a West Point cadet, died in a ski accident. The court in the Zhu case relied on the evidence of the deceased’s general wish for children expressed during his life.
I touched base with Reproductive Negligence and Birth Rights and Wrongs author Dov Fox on the ruling. Prof. Fox points out that the court skipped over the hard questions about how to define Robertson’s loss or how to value her husband’s missing sperm. Instead, it focused on the lack of written pre-death consent. The judges thought it more reasonable to presume “that absent some affirmative indication to the contrary, a decedent did not intend his or her gametic material to be used for posthumous conception.” Fox says he could see where they’re coming from … if the husband hadn’t died so suddenly, or if it were anything like normal to write this stuff down. But it’s not — for now, at least. Who leaves instructions about what their spouse should do with their sperm or eggs if they die without warning? Under these circumstances, Fox thinks it’s more reasonable to reverse the default: absent contrary evidence, trust the next of kin to say what their loved one would have wanted. That’s why Fox thinks the court got it wrong.
I also connected with Robertson’s attorney, litigator, and reproductive law expert Dean Masserman. Masserman noted that they conceded from the beginning that while it was clearly evidenced that the deceased had wanted children with his wife, nowhere did he write down his post-death intention for his sperm. Masserman explained that California law is flawed. While a presumption exists for a spouse to have control over a deceased spouse’s tissue and gametes, it then fails to include the presumption of use. Masserman had hoped that the Court of Appeals would take the opportunity to look beyond technicalities and fix the law. And, more importantly, recognize that a wrong needed to be righted.
So, will we see an appeal to the California Supreme Court? Stay tuned.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
For those of you watching with bated breath the twists and turns of the gender discrimination case against Biglaw firm Jones Day, you’ll be excited to learn that (some) of the claims have survived a motion to dismiss. And the firm’s compensation “black box” is that much closer to being cracked open.
And, for those who need the primer on the case, the purported class-action gender discrimination case alleges a “fraternity culture” at the firm and unequal pay behind the firm’s notorious “black box” compensation system. There are currently six named plaintiffs in the case (there had been seven, but one anonymous plaintiff dropped out rather than reveal her name). The plaintiffs are spread throughout the country — Nilab Rahyar Tolton, Andrea Mazingo, Meredith Williams, and Jaclyn Stahl worked in California offices of the firm, while Saira Draper was an associate in Atlanta, and Katrina Henderson was in the firm’s New York office — and a core allegation is that the same black box compensation systems kept their pay below that of men working at the firm.
As reported by Law.com, the hostile work environment allegations, the discrimination claims for pregnant women/mothers, and the Equal Pay Act violations of Tolton, Stahl, and Mazingo were dismissed. But the sex-based disparate impact claims survived, though U.S. District Judge Randolph Moss of the District of Columbia noted the higher burden at summary judgment:
“According to Jones Day, all of plaintiffs’ disparate impact claims fail as a matter of law. Although plaintiffs will, once again, face a far steeper hill at summary judgment, the court is persuaded that they have alleged enough to survive defendant’s motion for judgment on the pleadings with regard to their sex-based disparate impact claims, but not their pregnancy- or maternity-based disparate impact claims,” Moss wrote.
But that does mean the firm’s “black box” practices will see the light of discovery:
“They have alleged that Jones Day employs a highly centralized, subjective evaluation process in which a consensus statement is prepared by ‘cherry picking’ feedback from some, but not all, evaluations, and in which complaints about compensation decisions are not tolerated,” Moss wrote. “Drawing all reasonable inference in plaintiffs’ favor at this stage of the proceeding, the court cannot accept Jones Day’s conclusion that each of these elements is necessarily capable of separation for analysis. For example, it is the very alleged secrecy and the quashing of complaints that purportedly allowed the disparate impact caused by the centralized, subjective, consensus evaluation system to continue from year to year.”
And on the black box policy, Moss said the plaintiffs “have the better argument” at this stage in the proceedings in claiming that “‘discovery may show that defendant’s processes for associate compensation are “not capable of separation for analysis,” but they ‘need not so prove before discovery.’”
We look forward to seeing exactly how this case develops.
Earlier coverage: Jones Day Hit With Explosive Gender Discrimination Case
Jones Day Facing Second Class-Action Lawsuit Over ‘Fraternity Culture’ Of The Firm
Partner Whose Behavior Features Prominently In Jones Day Gender Discrimination Lawsuit Is Out At The Firm
Jones Day Wants Gender Discrimination Plaintiffs To Reveal Themselves To The Public
Plaintiffs Throw Shade At Jones Day In Gender Discrimination Lawsuit
Gender Discrimination Lawsuit Against Jones Day Gets Yet Another Plaintiff
Gender Discrimination Lawsuit Against Jones Day Dropped — Well, One Of Them At Least
Jones Day Gender Discrimination Case Spreads To New York
Amended Gender Discrimination Case Brings The Real Scoop On Jones Day Compensation
Jones Day To Gender Discrimination Plaintiffs: You Don’t Deserve To Be Paid On The Cravath Scale
Plaintiff Backs Out Of Gender Discrimination Lawsuit Against Jones Day Rather Than Reveal Her Name
Plaintiffs In Jones Day Gender Discrimination Case Want It To Be A Class Action
Jones Day Files For Sanctions In Ongoing Gender Discrimination Lawsuit
Jones Day Argues That Everyone’s Happier Not Knowing They’re Underpaid
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).