Welcome to Labor of Law—I'm Mike Scarcella in Washington, and you can reach me at [email protected] and on Twitter @MikeScarcella. Thanks for reading!

9th Circuit Upholds Plaintiffs Disqualification

A federal appeals court has ruled against the plaintiffs firm Keller Lenkner in its challenge to a trial judge's order disqualifying the firm from representing the livery service Diva Limousine in a labor-and-employment suit against Uber Technologies Inc.

Central to the dispute: Keller Lenkner's Warren Postman joined the firm last year from the U.S. Chamber of Commerce, where he had been the top appellate lawyer. In his Chamber role, Postman had worked with Uber. U.S. District Judge Edward Chen in San Francisco in January disqualified Postman and Keller Lenkner.

A team from Morgan, Lewis & Bockius represents Uber in the Diva Limousine case, which alleges Uber's classification of its drivers as contractors, rather than employees, violated California labor law and allowed Uber to compete unfairly.

Lawyers at the plaintiffs firm had argued that Postman never represented Uber as a client and that he had not accessed privileged or confidential information from the ride-hailing company. The firm urged the U.S. Court of Appeals for the Ninth Circuit to overturn the disqualification order. “The district court's decision disqualified Mr. Postman without citing a violation of any ethical rule,” the firm said in a court filing.

The Ninth Circuit said in its order: “Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus.”

Meet the Lawyer Driving a Gender Reckoning

David Sanford (above), chairman of Sanford Heisler Sharp, represents numerous women partners and has settled cases against Chadbourne & Parke (now Norton Rose Fulbright), Proskauer Rose and Sedgwick. He's also brought gender bias lawsuits against Jones Day, Morrison & Foerster, Ogletree Deakins, Wilmer Hale and others.

My colleague Vivia Chen recently caught up with Sanford for an episode of Law.com's Legal Speak pod. Listen to the full conversation here. What follows are a few snippets from the conversation, edited for length and clarity:

The firm's trajectory: ”Most of the work that my firm did years ago really was in race discrimination and wage and hour context—Title VII generally. We brought cases in the restaurant industry, manufacturing, car dealerships, pharmaceutical companies and medical device companies. I think the tide started turning in 2010. We bought a case against Novartis Pharmaceuticals. That case went to trial—it was a gender discrimination class action. It got a $253 million jury verdict. I think since then we have been doing far more gender discrimination matters.”

Increase in claims: ”I think it's certainly true people generally are more knowledgeable about their rights and remedies because of the cases that have been reported on. I think people are more willing perhaps to join with colleagues to bring claims. I think people are more willing to serve as witnesses.”

Thinking about possible cases: ”The vetting process is very rigorous—we have to make a determination based on a fair amount of about facts that we receive over the phone as to whether or not there are supporting witnesses and/or documents. We have to make a judgment as to whether the client is consistent in recounting facts—whether the potential client is articulate. And ultimately to take a case—we like to make a judgment not only as to whether the potential client is credible but also likable in some way, relatable. Because we assume when we take a case we're going to wind up before a jury.”

Who Got the Work

>> A team from McDermott Will & Emery led an internal investigation of The Nature Conservancy's workplace culture. “Two senior officials at The Nature Conservancy, one of the world's most influential environmental groups, have exited the organization after an investigation into allegations of sexual harassment and workplace misconduct,” Politico reported.

>> Littler Mendelson shareholder Barbara Rigo and Greg Greubel, an associate, are on the team representing international drug manufacturer AstraZeneca in a pregnancy discrimination suit brought by a former sales representative in New York City. The complaint was filed Tuesday in the Southern District of New York. Allen & Desnoyers partner Denise D'Ambrosio represents the plaintiff. My colleague Colby Hamilton has more here.

>> Stephen Payerle of New Jersey's McElroy, Deutsch, Mulvaney & Carpenter represented Johnson & Johnson in a Sarbanes-Oxley whistleblower case at the U.S. Labor Department. An administrative law judge on May 22 dismissed the action after Kellee Boulais Druse, representing the complainant, withdrew objections to the OSHA decision.

>> Morgan, Lewis & Bockius is representing Amazon in a former warehouse manager's overtime suit in Oakland federal district court. The presiding trial judge last week dismissed federal claims but kept alive state-law allegations. Scott Cole & Associates represents the plaintiff, Michael Ortiz. Amazon's summary judgment filing is here. The New York Times wrote about the case here last year.

>> Maryland solo David J. Shaffer is representing a group of former FBI recruits in a new suit filed Wednesday in Washington's federal trial court. “Women who were once F.B.I. recruits sued the bureau on Wednesday, accusing it of running a 'good-old-boy network' at its training academy that discriminates against women, in some cases because of race and disabilities in addition to gender, and sets them up to fail,” according to a New York Times report.

Around the Water Cooler

>> Fortune 500 Attorney Takes Reins from EEOC's Bipartisan Leader. “The Supreme Court will soon hear arguments in three cases cases on the LGBT question, but Dhillon (above) joins the commission with other big policy decisions looming. That includes what to do about a controversial pay data collection initiative, age discrimination concerns in employee wellness plans, and combating sexual harassment in the wake of the#MeToo era.” [Bloomberg Law]

>> NY Lawmakers Seek Changes to Strengthen Sexual Harassment Laws. “State lawmakers in New York held just their second hearing in nearly three decades Friday on the topic of workplace sexual harassment, which the Legislature could address through policy changes over the next four weeks,” my colleague Dan M. Clark reports. [New York Law Journal] WSJ has more here.

>> D.C. Employers Pay Nearly $500,000 Under 'Ban the Box' Law Since 2014. “D.C.'s Office of Human Rights released a report indicating the city has received more than 1,800 complaints since the law went into effect, resulting in administrative charges for discrimination in more than 1,100 cases. More than 90 percent of those charges related to criminal background questions that appeared on job applications, the report said, while less than 5 percent involved questions an employer asked during an interview.” [The Washington Post]

>> Wynn Resorts Will Not Appeal Massachusetts Regulator's Ruling. “Wynn Resorts Ltd. said it would not appeal a decision from Massachusetts regulators after a review of how the company handled sexual-misconduct allegations against its founder and former chief executive Steve Wynn.” [WSJ]

>> Google's Shadow Work Force: Temps Who Outnumber Full-Time Employees. “High-tech companies have long promoted the idea that they are egalitarian, idyllic workplaces. And Google, perhaps more than any other, has represented that image, with a reputation for enviable salaries and benefits and lavish perks. But the company's increasing reliance on temps and contractors has some Google employees wondering if management is undermining its carefully crafted culture.” [New York Times]

>> Schwab Asking Ninth Circuit to Send 401(K) Lawsuit to Arbitration. “The 9th U.S. Circuit Court of Appeals in San Francisco is set to consider next month whether to compel arbitration of a proposed class action accusing Charles Schwab Corp of loading its employees' retirement plan with its own high-cost funds to profit from fees.” [Reuters]

>> Equity for Fathers in Parental Leave Is Affirmed in New Case. As part of a settlement announced Thursday, JPMorgan Chase “will take steps to ensure that its policy is administered in a gender-neutral way. And it will create a $5 million fund to compensate up to about 5,000 fathers who were shortchanged in the past.” [New York Times]

>> NLRB to Revisit Ruling That Granted Graduate Students the Right to Organize as Employees. “The labor board has a history of shifting positions on the question of graduate worker rights that reflects the ideology of the party in power. The board supported collective bargaining for graduate students at New York University in 2000, but four years later, with members appointed by President George W. Bush, it reversed the ruling in a case involving Brown University. That decision was then overturned in 2016 by a board largely appointed by President Barack Obama.” [The Washington Post]

>> Time Warner Cable Loses Marathon Bid To Thwart Age Discrimination Plaintiff. “How far will a company go to fight a charge of age discrimination? Time Warner Cable ran a marathon that included two jury trials and an appeal.” [Forbes] Catrina Creswell of the boutique labor and employment firm Kabat Chapman & Ozmer in Atlanta argued for Time Warner Cable. Todd Combs of North Carolina's Combs Law argued for the former employee. Read the Fourth Circuit's decision here.

>> Agencies Update Regulatory Agenda for 2019 and Beyond. “Although the estimated completion dates on the regulatory agenda are more aspirational than set in stone, they do provide employers with a loose roadmap of where the agencies will focus their rulemaking efforts in the coming months or even years.” [Littler Mendelson]

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Notable Moves & Announcements

• Sidley Austin has brought on Eric Kauffman from Cooley, where he had been a partner. Kauffman focuses on labor and employment matters and works with private equity and venture capital sponsors on M&A, financing, spinoffs and divestiture.

• Barnes & Thornburg has added Nicole Bogard as a partner in Atlanta in the corporate department. Bogard previously led Seyfarth Shaw's ERISA, employee benefits and executive compensation practice in the firm's Atlanta office.

• Jenner & Block has hired veteran litigator Joseph Torres as a partner in the firm's ERISA litigation practice. Torres joins the firm from the Chicago office of Winston & Strawn, where he had been a partner.

• Eric Su has joined Crowell & Moring as a labor and employment partner in New York. He joins from FordHarrison LLP, where he was the managing partner of the New York office and co-chair of the construction practice group.

• Reed Smith has announced the hiring of Lori Armstrong Halber as partner in the Philadelphia office. Armstrong Halber arrives from Fisher Phillips, where she was a partner and member of the firm's Women's Initiative & Leadership Council Steering Committee.

Labor of Law will take a brief pause but return June 13. Thanks for reading!