Senator Kamala Harris (Photo by NOAH BERGER/AFP/Getty Images)
Kamala Harris is in a bit of a sticky situation.
The presidential hopeful has publicly come out in opposition to mandatory arbitration agreements. Indeed, she joined Senator Richard Blumenthal urging JPMorgan Chase to eliminate forced arbitration, saying at the time:
“One of the fundamental principles of our democracy is that everyone should get their day in court. Forced arbitration deprives Americans of that basic right.”
And that’s a great, liberal stance to take! Unfortunately for the senator, DLA Piper feels very, very differently. See DLA is where Harris’s husband, Douglas Emhoff, is a partner. And the firm’s stance on mandatory arbitration has been in the news lately — a partner at DLA, Vanina Guerrero, alleges the co-managing partner of the firm’s Silicon Valley office, Louis Lehot, repeatedly sexually assaulted her, beginning shortly after she began working for the firm in 2018. Last week Guerrero penned an open letter asking the firm to release her from their forced arbitration agreement so she’d be free to pursue her claims in open court. The firm has yet to respond to Guerrero’s request to be let out of the mandatory arbitration agreement, saying only that they are aware of the allegations against Lehot and are investigating.
Indeed, DLA Piper has defended their use of mandatory arbitration before. When law school student activists organized a #DumpDLA campaign over their arbitration stance, the firm put out a fluffy statement defending arbitration conflating the benefits some people get from arbitration as an option and ignoring the harms of forcing all their employees to use that as their exclusive mechanism for dispute resolution. Their stance didn’t waiver amidst protests against mandatory arbitration outside of their office.
All of which sets the stage for the latest move. Guerrero’s attorney, Jeanne Christensen partner at Wigdor, wrote an open letter to Harris asking her to condemn the use of mandatory arbitration agreements at DLA Piper:
I am sure you would agree that silencing women through forced arbitration must end. No female employee, including a new partner, would knowingly agree to waive her right to our court system for claims involving sexual assault, battery or rape. Given your profile as a candidate for the Democratic nominee for President of the United States, you are in a unique position to condemn the actions of DLA Piper and make clear that mandatory arbitration must stop. We, therefore, urge you to publicly support the notion that all women who work at DLA Piper deserve to hear allegations about unlawful sexual conduct by male employees.
And, you have to give it to Christensen, this is a smart play. Legally, they don’t have a way into court unless DLA waives the arbitration agreement. So turning up the pressure on the firm is really their best bet, and using a high profile partner and his higher profile spouse to do so keeps the conversation about sexual assault and mandatory arbitration going and gives it the widest possible audience.
Now some have argued it isn’t fair to hold Harris responsible for the actions of her husband and his firm. But Harris willingly waded into the mandatory arbitration waters when JP Morgan Chase was doing it. Why wouldn’t it be okay to now ask Harris if her stance on mandatory arbitration is universal or if it stops when her family gets some tangential benefit from the agreement. And here’s the thing, she can (and, hopefully, will) condemn DLA — no one has to agree with their spouse 100 percent of the time and with their spouse’s law firm even less of the time. But asking Harris this question to better get a sense of the contours of her position on mandatory arbitration agreements is more than a fair question for someone who wants to be president.
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).