Forecast for Jones Day: Sun Could Shine on Its Black Box
The law firm's bid to seal the gender pay discrimination lawsuit it's defending is bodacious, but experts said the odds are against it.
July 02, 2018 at 06:04 PM
4 minute read
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Well, I guess you can't blame a firm for giving it the old college try.
As I wrote in my last post about the gender discrimination suit against Jones Day (“Jones Day Is So Secretive About Why It's So Secretive”), the firm is fighting to block any sliver of sunlight on the case. It is so determined to keep the public from glimpsing any details about the litigation that it has asked the court to put all documents under seal, including the complaint filed by former Jones Day partner Wendy Moore—even though the complaint has been in the public and widely covered by the media for two weeks. (Query: Does that mean that the firm is asking the court to make all media outlets scrub all mention of the complaint?)
In my humble opinion, it's a wild, bodacious move. So here's what we all want to know: Will Jones Day succeed in keeping everything under wraps?
“Most judges won't seal without a good reason,” said Kathleen Peratis, a partner at Outten & Golden, an employment firm in New York.
So far, of course, we don't know the reason, since Jones Day is also keeping that a secret.
But we can guess that it probably has something to do with its black box compensation system in which no one—associates or partners—has any idea what others make and is allowed to ask. (Another oddity is that Jones Day partners are forbidden to inquire which partners have equity.)
Jones Day's request to seal documents is atypical in this matter and could face greater scrutiny. “The firm isn't asking the court to seal documents to protect its clients' confidences but to protect the firm's own nonpublic information,” said Bruce Green, a professor at Fordham Law School and former prosecutor in the Southern District of New York.
Moreover, “Courts generally have become more hesitant to seal civil litigation records in employment cases,” said Gerald Hathaway, an employment partner at Drinker Biddle & Reath, adding that the firm might be overreaching. “I note that the firm is representing itself, and there may be pressure on the lawyers handling the case to be overly aggressive, and if they disagreed, the dynamic of law firm life is that it would be difficult for those lawyers to push back.” (Remember, the former head of Jones Day's San Francisco office —now, of counsel—Robert Mittelstaedt, the father in-law of the $810K associate, is representing the firm.)
So how will Jones Day push its argument? ”The parties will probably contest whether Ms. Moore breached her partnership agreement with Jones Day, or her fiduciary duty to her former partners, by disclosing certain private information in a lawsuit,” said Green “But even if she did, Jones Day may not be entitled to a sealing order that is in derogation of the public interest in judicial openness.”
At a time when the gender pay gap is a huge topic, I'd argue that there's a strong public interest in getting to the bottom of any gender discrimination dispute, particularly one that's anything but transparent.
“Jones Day can dispel [accusations of discrimination] by simply releasing a breakdown of how men and women are paid,” said Harvard Law School lecturer Ian Samuel, a former Jones Day associate, who told me a few weeks ago that there's discontent among the firm's lawyers about the black box system. “But it won't do it.”
Indeed, it's unlikely that Jones Day will reveal anything without kicking and screaming. And that, of course, makes all of us curiouser and curiouser.
Contact Vivia Chen at [email protected]. On Twitter: @lawcareerist
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