Did a national employment law firm botch the rollout of changes to its own arbitration program?

That's the claim of a former Ogletree, Deakins, Nash, Smoak & Stewart attorney suing the firm for gender discrimination who is asking a federal judge to keep the case out of arbitration.

Dawn Knepper, who worked as a non-equity shareholder in the firm's Orange County office before filing suit in January, claims that she never read or agreed to the firm's 2016 “Mutual Arbitration Agreement.” Her lawyers at Sanford Heisler Sharp claim in court papers filed Tuesday that the firm buried the agreement in a “misleadingly-titled email” to employees the Friday before a holiday weekend. They also argue, given the language of the agreement, that the firm can't take Knepper's lack of sign-off as her assent to arbitrate disputes with the firm.

“Given its self-promotion as a go-to advisor on arbitration agreements, defendant cannot now request the benefit of the doubt for poor draftsmanship,” wrote Knepper's lawyers. “Had Ogletree intended to create an agreement that required no signature, it certainly knew how to do so. Ogletree's insertion of sloppy and imprecise language into its own stock agreement lacks justification and all resulting ambiguity and confusion must be interpreted strongly against Ogletree.”

The filing comes as U.S. District Judge William Orrick III of the Northern District of California, who is currently overseeing the case, has asked both sides for supplemental briefing on Ogletree's motion to transfer the case to a federal court in Orange County. Orrick previously heard arguments on the motion, but opened limited discovery in the case to suss out the issue of whether Knepper, who is now a shareholder in the Orange County office of Buchalter, agreed to firm's arbitration agreement—a key element underpinning the firm's transfer motion.

According to court papers, the firm has a “read receipt” from Knepper for an email laying out policy changes that included the arbitration agreement. The email, which included a copy of the agreement, was sent at 4:45 a.m. Jan. 15, 2016—the Friday before the Martin Luther King Jr. Day holiday—with the subject line “IMPORTANT – Two New Programs for 2016.”

The firm's Orange County office administrator followed up with a March 1, 2016, email, stating “today is the deadline to sign and return a copy of the Mutual Arbitration Agreement.”

Knepper replied a few minutes later, writing, “I will turn mine in tomorrow. Thanks,” but never returned a signed agreement. Knepper's lawyers note her response didn't mention whether she would sign the agreement or return an opt-out form.

Sanford Heisler's Leigh Anne St. Charles said in a phone interview Wednesday that sending a mass email with an ambiguous subject line “is just insufficient to put employees on notice that they are waiving their statutory rights.”

“The process for creating a binding arbitration agreement has to actually inform the other party to the contract that they are entering a contract,” St. Charles said. “This is just a fundamental, basic tenant of contract law.”

Ogletree's lawyers at Paul Hastings contend that the firm's updated arbitration program applied to anyone who continued to work for Ogletree who didn't opt out of the program within six weeks of its announcement. They point out that on July 11, 2017, more than a year after she first received the agreement and more than six months before she filed suit, Knepper forwarded a copy of the original email, the arbitration agreement, and the other attachment to her personal Gmail account.

“As a seasoned employment attorney, Knepper cannot credibly argue that she did not understand the agreement or its opt-out instructions,” wrote the firm's lawyers, including former Paul Hastings employment law chair Nancy Abell.

In asking to transfer the case to Orange County, the Paul Hastings lawyers point out that although Knepper's amended complaint asks to add four plaintiffs, the only other proposed California plaintiff is former equity shareholder Tracy Warren, who also worked out of Ogletree's Orange County office.

Ogletree declined through a spokesperson to comment.

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