Orrick sign Orrick, Herrington & Sutcliffe offices. Credit: Jason Doiy/The Recorder

A U.S. Labor Department judge appears to be growing increasingly concerned about the sharp litigation tactics unfolding in the federal agency's pay-discrimination case against the tech company Oracle Corp., a dispute that has been bitterly fought for more than two years.

Both sides in the case—Oracle is represented by a team from Orrick, Herrington & Sutcliffe—recently tried to convince the judge to reprimand the other side amid allegations of misconduct and misrepresentations. Labor Department attorneys unsuccessfully accused Oracle's lawyers of witness intimidation. The Orrick team, meanwhile, argued the labor agency's lawyers made misrepresentations about the case when they reached out to Oracle employees.

“The parties appear to have adopted a confrontational meet and confer approach rather than a collaborative approach to resolving issues,” Richard Clark, the administrative law judge overseeing the Labor Department's case, said in a recent order. “Whether intentional or not, the parties are shifting the responsibility to the court for resolving what appear to be issues well within their capabilities to figure out on their own.”

Clark added: “I have mentioned this before—stop with the invective and contentious email communications, get on the phone or meet in person, and get these issues resolved.” Indeed, Clark, just a few weeks ago, cautioned the lawyers in the case to watch their “tone and manner.” In that instance, Clark said the government's primary interest should be that the law is followed, not whether there is “victory or defeat in any litigation.”

A Labor Department representative declined to comment Monday, and an Orrick lawyer involved in the case was not immediately reached for comment.

The Labor Department's case has been heated since the start, when U.S. regulators filed claims just days before the Obama administration ended. Oracle charged that the case was infected with political motivations, an allegation the Labor Department has refuted.

The Labor Department's claims that Oracle has broadly discriminated against female, African American and Asian employees carry enormous potential consequences for the Redwood City-based company. An adverse finding could threaten Oracle's current and future federal government contracts. Oracle denies the government's claims. The company has said “we are in compliance with our regulatory obligations, committed to equality and proud of our employees.”

Clark's order last week rejected the Labor Department's move to punish Orrick lawyers for their alleged inappropriate interactions with Oracle employees. The judge also declined immediately, on his own at least, to order the Labor Department to issue corrective statements to fix some of the things agency attorneys said in notices to Oracle employees. (Clark, however, wants both sides to talk about whether they can agree on a corrective notice.)

The judge said he was troubled by some of the things the Labor Department said in the notices that went out to Oracle managers. One of those purported misstatements was the amount of damages that are allegedly in contention in the case.

“The reference to $600,000,000.00 in damages is perplexing. The second amended complaint referred to a total of $401,000,000.00 in damages,” Clark wrote. “Though it was clear that the amounts would grow over time as the alleged discrimination continued, nearly $200,000,000.00 is a significant difference to find in less than a month. It is not clear why a number needed to be included at all.”

Clark shot down arguments that Orrick's team had committed any sort of ethical misconduct in their engagement with company employees. “OFCCP has made serious allegations of attorney misconduct, yet has offered nothing specific to sustain those claims,” Clark wrote.

He noted at one point that “an extraordinary amount of resources have been poured into this case” and that he would not allow the Labor Department to file any new complaint.

“This case has already been pending since January 17, 2017. It is time to move forward to a resolution. If Oracle is discriminating against its employees, it needs to end, and the sooner the better,” Clark wrote. “If Oracle is not discriminating against its employees, this litigation needs to end so the parties can move on.”

 

The U.S. labor judge's order is posted below:

 

 

Read more:

US Labor Judge Warns Lawyers About 'Tone' in Oracle Discrimination Case

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