Winston & Strawn Denies Ex-Partner's 'Firm Always Wins' Characterization
The firm, represented by Orrick at the US Supreme Court, is pressing its argument that a former partner's discrimination and retaliation claims must face confidential arbitration.
August 13, 2019 at 06:16 PM
4 minute read
The original version of this story was published on National Law Journal
Lawyers for Winston & Strawn pressed their argument at the U.S. Supreme Court on Tuesday that a former partner should be forced to make her discrimination and retaliation claims through a confidential arbitration proceeding and not in court.
The former San Francisco-based partner, Constance Ramos, sued Winston & Strawn in California state court for allegedly passing her over for work and effectively forcing her out of the firm. Ramos, who now works at her own firm, Akira IP, defeated Winston & Strawn’s drive to keep her claims out of court.
The dispute is the latest at the Supreme Court that presents a clash between employment practices and the Federal Arbitration Act, and the case arrives at a time when more female lawyers are suing firms for alleged gender discrimination.
Winston & Strawn’s lawyers at Orrick, Herrington & Sutcliffe said in their new Supreme Court filing that the Ramos case presents issues that “are tremendously consequential to employers with a California presence.”
Central to the case is the 2000 California state court decision in Armendariz v. Foundation Health Psychcare Services. Orrick partner E. Joshua Rosenkranz, lead counsel for Winston & Strawn, told the Supreme Court that Ramos’s win “is emblematic of California courts’ adherence to the overtly arbitration-disfavoring rules” that were established in the Armendariz decision.
Ramos’s lawyer, Karla Gilbride of Public Justice, told the justices last month that Ramos would have won her challenge irrespective of the Armendariz ruling. Rosenkranz, in his new filing, portrayed Ramos’s high-court pleadings as downplaying the centrality of the Armendariz decision.
“To say ‘[t]he opinion below cited to Armendariz,’ is like saying Moby-Dick mentions a whale. Armendariz is a dominant presence in the opinion below,” Rosenkranz wrote.
Gilbride, urging the justices to uphold Ramos’s California state court win, said Winston & Strawn’s “overly harsh” terms in the firm’s partnership agreement drove the California state ruling against the law firm. Gilbride described one of those terms as the “firm always win” clause.
“Winston chose to include that highly unusual ‘firm always wins’ clause in its partnership agreement, and it is that decision—not anything the California Supreme Court said 20 years ago in Armendariz—that placed Winston in the position in which it now finds itself,” Gilbride told the justices. She said the California Court of Appeal “concluded that this ‘firm always wins’ clause would make it impossible for the arbitrators to award Ramos back pay, front pay, reinstatement or punitive damages.”
Rosenkranz, co-leader of Orrick’s Supreme Court and appellate practice, took issue with the description of that clause.
“She tendentiously calls it the ‘firm always wins’ clause, and mentions it 27 times,” he wrote. “It is more appropriately called the ‘partnership judgment’ provision, as it simply means that an arbitrator may not second-guess the partnership with respect to business matters.”
Winston & Strawn’s lawyers said Ramos “offered no evidence that anyone in the history of the firm had ever read it that way—much less enforced it.”
“A much more natural reading is the one the trial court adopted—that the provision is akin to the business judgment rule, under which courts defer to the judgment of corporate directors in the exercise of their broad discretion in making corporate policy decisions,” Rosenkranz wrote in Tuesday’s filing.
There’s no certainty the Supreme Court will agree to hear Winston & Strawn’s petition. The firm has garnered support from business advocates, and one Big Law firm, Ropes & Gray, filed an amicus brief backing arguments that Ramos’s claims should be pushed into arbitration.
Ramos was the highest-billing income partner in Winston & Strawn’s San Francisco office in 2016, her lawyer said in court filings. Ramos joined Winston & Strawn from Hogan Lovells.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllLitigators of the Week: 3 Former SGs Team Up In a Major Opioid Win for Pharmacies at the Ohio Supreme Court
'The Most Peculiar Federal Court in the Country' Comes to Berkeley Law
Litigators of the Week: The Eighth Circuit Knocks Out a $564M Verdict Against BMO in Ponzi Case
Litigator of the Week: Reversing a $2B Trade Secret Verdict, the Largest in Va. History
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250