Instead of leveling accusations in a lawsuit, DLA Piper partner Vanina Guerrero this week used an open letter to detail her sexual assault allegations against the co-head of the firm's Silicon Valley office.

In the letter, she asked the firm's leaders to voluntarily release her from a mandatory arbitration provision, asserting that no lawyer "should be forced to litigate claims involving sexual assault and battery or sexual harassment by male lawyers in secret."

Airing such allegations in a letter may raise eyebrows, but it is not an unusual tactic for clients of Wigdor LLP, which is representing Guerrero. Other clients of the New York-based employment firm have written open letters calling on companies to release them from arbitration from Charter Communications, Ernst & Young, Morgan Stanley and Uber Technologies.

The letters—some of them accompanying arbitration or litigation—have attracted an avalanche of attention from the public, and sometimes from lawmakers. Ultimately, an open letter could be an attempt to find out sooner whether a company will force arbitration.

In the case of Uber Technologies, a few weeks after the open letter was released, the company said it was eliminating forced arbitration agreements for employees, riders and drivers who make sexual assault or harassment claims against the company.

More often, though, plaintiffs whose employers claim they are bound by an arbitration agreement will publicly air allegations through a lawsuit and challenge the arbitration provision in court.

"Many, many lawyers have done that, and what's the result?" said Guerrero's attorney, Wigdor partner Jeanne Christensen, in an interview. "The result is, then you're on the defense and nine times out of 10, the employer wins."

The open letter is "an option" for some cases, if the circumstances in the case warrant it, she noted, adding it happens in only a minority of her firm's cases. "If there wasn't an arbitration clause that was being forced on an employee, there would never be an open letter," Christensen said.

To be sure, Wigdor has brought some prominent cases in court that challenged arbitration provisions. But in addition to the threat of losing such a challenge, litigation can also drag out a dispute.

For instance, Wigdor filed a gender discrimination lawsuit on behalf of Lauren Bonner, Point72′s head of talent analytics, against the hedge fund in Manhattan federal court in February 2018. Within two days, Point72 filed a motion to compel arbitration. The court in July 2018 ruled an arbitrator must view the claims.

"Companies always want to delay litigation," Christensen said.

In the matter involving DLA Piper, Guerrero has also filed a claim with the Equal Employment Opportunity Commission. An employee cannot waive his or her right to file a claim before the agency, Christensen noted. But that claim may take some time. It can take six months to get a right to sue letter from the EEOC because the agency has such a high volume of cases to handle, she said.

Asked Thursday whether the open letter had produced any response from DLA Piper, Christensen said the only thing she's seen is the firm's public statement in a press report, in which it said it took Guerrero's accusations seriously and was investigating them.

"The only thing we're waiting for is their answer," Christensen said, declining to discuss her client's next steps.

'Means to an End'

David Sanford, who has brought a series of employer misconduct suits against law firms such as Chadbourne & Parke (now Norton Rose Fulbright), Proskauer Rose, Jones Day, Morrison & Foerster and Ogletree, Deakins, Nash, Smoak & Stewart, said open letters can be an "excellent idea."

"It's an idea people are doing more of, and should do more going forward, because it raises in the public what the issues are that otherwise are kept quiet in arbitration," Sanford said.

Sanford said his firm, Sanford Heisler Sharp, challenges arbitration agreements on a regular basis. "If an arbitration agreement is challengeable in our view, our preference is to file in court," he said.

However, if such a challenge is doomed to fail, "then the open letter may be the way to go," Sanford said. "I don't see any disadvantage at all, so long as the letter is well-drafted and thoughtfully considered."

Laying allegations bare to partners and the press is "another good means to an end," he said.

"The end in question is making it public, and ultimately litigating in public what is essentially a public interest matter," Sanford said, noting people should have the ability to resolve their claims before a jury. "When you bring it underground, you do a great disservice to our civil justice system."

Mandatory arbitration for lawyers at law firms has come under heavy scrutiny in the legal industry in the last year, partly due to the People's Parity Project, an organization of law school students that banded together last year to oppose mandatory arbitration at law firms.

Meanwhile, a former Winston & Strawn partner who is suing the firm for alleged gender bias has urged the U.S. Supreme Court to uphold a California state court ruling that kept her claims in court and out of arbitration.

Out of View

While Guerrero's dispute with DLA Piper hasn't been filed in court, at least as of Thursday, her claims against partner Louis Lehot have become more public than the claims of many other law firm partners.

Both Christensen and Sanford said most cases get resolved privately. "We have handled many, many cases on behalf of female lawyers against law firms or companies," Christensen said, and most end up resolved without becoming a matter of public record.

In his firm's cases, Sanford said, the firm sends a demand letter and invites its adversary to have a confidential conversation, typically culminating in a one-day mediation and often resulting in a settlement. "The vast majority of our get resolved confidentially pre-suit," he said.

"We've settled dozens of cases against law firms in the past two years," in which the claims are confidential and pre-litigation, Sanford added.

Law firms are "conservative institutions in general and mindful of the costs"—financial, reputational and otherwise, he said. "It makes sense to certainly try to settle."

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DLA Piper Partner Accused of Sexual Assault in EEOC Claim, Open Letter