Connie Bertram of Proskauer Rose. Photo Credit: Diego M. Radzinschi

Lawyers for the female partner leading a $50 million gender bias lawsuit against Proskauer Rose added retaliation and defamation claims and for the first time revealed that the plaintiff is Connie Bertram, head of the firm's Washington, D.C., labor and employment practice and co-head of the firm's whistleblowing and retaliation group.

The identity reveal came as Bertram's lawyers, led by David Sanford of Sanford Heisler Sharp, lodged an amended complaint late Wednesday in D.C. federal court. In addition to ditching the Jane Doe designation that Bertram had been using since she initially filed the suit last May, the amended complaint adds new claims.

Specifically, Bertram's lawyers alleged that since she filed suit last year, she has faced retaliatory actions from the firm, including defamation and an unfair reduction in her pay for 2017, even as other partners at the firm received raises. The amended complaint cited Proskauer's recent financial results as reported in the Am Law 100; in 2017, the firm took in gross revenue of more than $890 million and posted profits per equity partner of $2.37 million. The amended complaint redacted specific information about the amount of Bertram's pay.

The amended complaint also alleged that a lawyer for Proskauer threatened retaliation during a mediation session that took place in New York before she ever filed her lawsuit. Bertram's side alleged that, during a JAMS Inc. mediation session, a Proskauer lawyer said, “You need to understand … you are going to be terminated. Your complaint upset a lot of people.” That alleged statement is at the core of a separate subpoena battle that's playing out in federal courts in New York.

The amended complaint further alleged that after Bertram raised complaints about unequal treatment for female partners, “Proskauer aggressively rebuked her,” excluding her from client development activities and firm leadership, isolating her from others at the firm and denying her access to client files. Bertram also alleged that she was barred from firm meetings, including the annual partner retreat held in January in Key Biscayne, Florida.

“In addition to pursuing her own claims, Ms. Bertram hopes to protect female attorneys from the types of overt discrimination and retaliation she has suffered and close the substantial gap in pay,” Sanford said Thursday in a statement. A representative for Bertram's lawyers said she would not be personally commenting on the suit at this time.

Proskauer, which has vehemently denied the gender bias allegations, issued a statement on Thursday saying the amended complaint “is full of accusations contradicted by the facts, and a misrepresentation of Proskauer's transparent and equitable compensation system that resulted in her earning enormous sums for her contributions.”

Proskauer partner Kathleen McKenna leads the firm's defense.

In the past, Proskauer has also argued that Bertram should not be allowed to pursue her claims in light of Clackamas Gastroenterology Associates v. Wells—a 2003 U.S. Supreme Court ruling that laid out a series of factors to determine if someone counts as a business owner or an employee for the purpose of anti-discrimination laws. The Clackamas factors include whether a person can hire and fire others, whether a person supervises others' work, whether a person reports to a superior, and whether a person shares in the business' profits and losses.

Proskauer has maintained that Bertram's status as an equity partner at the firm makes her a business owner who should not be able to invoke anti-discrimination laws designed to protect employees. Bertram's lawyers have countered that “rank-and-file” partners at the firm have little control over its strategic or business decisions and effectively serve as employees as defined under anti-bias laws.

In late March, U.S. District Judge Amy Berman Jackson of the District of Columbia declined to grant Proskauer's summary judgment motion, but also expressed some skepticism about Bertram's suit. The judge set the case toward a period of limited discovery focused on the question of whether Bertram should properly be characterized as an employee or not.

Earlier in April, the judge laid out a schedule for that discovery and ordered the two sides to engage in mediation with a senior judge under an alternative dispute resolution process established in the court's local rules. Unless the parties reach a settlement, the mediation is set to end June 18, according to an April 17 scheduling order.

Proskauer's statement on Thursday referenced the limited discovery period and the employment status issues the judge ordered the two sides to focus on.

“The plaintiff's amended complaint presents no new evidence on the threshold legal issue in this case—whether she is a business owner or an employee,” Proskauer's statement said. “We will respond in detail to the plaintiff's amended complaint in the next several weeks, and will show that the plaintiff was treated more than fairly. Further, we remain confident that with the limited discovery the Judge has ordered, it will soon become evident that the plaintiff is a business owner, and that her claims to the contrary are without merit.”

A separate but related aspect of the dispute—regarding the alleged statement during the JAMS mediation—is currently up for consideration at the U.S. Court of Appeals for the Second Circuit.

Representing Bertram, Sanford argued on April 18 at the appeals court that his team should have access, through a subpoena, to notes of the JAMS mediator in New York who oversaw the pre-suit mediation between Bertram and Proskauer. Sanford also argued at the Second Circuit that, as an alternative to turning over the notes to his side, a lower court judge could instead conduct an in camera review of the mediator's notes to determine whether there's anything in them that responds to the JAMS subpoena.

A lawyer for JAMS, William Wallace III of Capital Legal Group, told the Second Circuit that he had reviewed the mediator's notes and found that there was nothing in them that responded to Sanford's subpoena. He also urged the court not to grant the in camera review. He argued that forcing a mediator to produce notes had the potential to undermine the mediation process, which, he said, relies on confidentiality in part because it creates a setting in which the two sides can air grievances without fear of them being used against them later in court.

The appeals court on Thursday issued a short ruling that directed the lower court judge to conduct the in camera review of the mediator's notes. The Second Circuit also wrote that the lower court should also consider whether the case is moot, particularly if the notes indicate that JAMS has already responded to the subpoena request.