Joshua Rosenkranz Joshua Rosenkranz. Photo: David Handschuh/ALM

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.

 

Read more:

Ex-Winston Partner, Suing Firm, Asks Justices to Uphold a Ruling Against Arbitration

Denied Anonymity, Ex-Jones Day Associate Retreats as Gender Bias Representative

Appellate Pro Steffen Johnson Leaves Winston & Strawn

Big Law Touts Arbitration in Winston & Strawn’s SCOTUS Case Against Ex-Partner

Roberts Delivers Latest Pro-Arbitration Ruling for Divided Court

Ex-Winston Partner Defeats Arbitration Bid in Gender Bias Suit