Biglaw, ERISA, Gender, Intellectual Property, Labor / Employment, Litigators, Litigatrix, Old People, Partner Issues, Partner Profits, Patents, Women's Issues

Does Ropes & Gray Hate the Old and Gray?

Patricia A. Martone

“You can’t eat the orange and throw the peel away — a man is not a piece of fruit.”

— Arthur Miller, Death of a Salesman (affiliate link)

Take this famous line and replace “man” with “law firm partner,” and you’ve captured the gist of the lawsuit against Ropes & Gray brought by Patricia Martone, who alleges age and sex discrimination by her former firm. (Martone, a former IP litigation partner at Ropes, is now a Morrison & Foerster partner.)

When I broke the news of this lawsuit back in 2011, I expected a speedy settlement. Would Ropes really want to go toe to toe with a pair of high-powered litigatrices, namely, Martone and her formidable employment lawyer, Anne Vladeck?

But here we are, two years later, and the battle rages on. Ropes has hired a third leading litigatrix to defend itself. Let’s learn the latest news….

(Note the multiple UPDATES at the end of this post.)

Here’s a report from Sara Randazzo of Am Law Daily (noted in Morning Docket):

An attorney representing Ropes & Gray insisted at a Wednesday hearing that the firm fired a 63-year-old female partner in the fall of 2010 because it no longer made economic sense to keep her, not because it was discriminating or retaliating against her.

Based on that argument, Proskauer Rose labor and employment partner Bettina Plevan attempted to persuade U.S. District Judge John Koeltl to dismiss on summary judgment a lawsuit brought against Ropes in March 2011 by former firm partner Patricia Martone.

Smart move by Ropes in hiring Plevan. Not only is she a distinguished lawyer and former president of the New York City Bar Assocation, but she’s also an older woman lawyer. Plevan graduated from Wellesley College in 1967, a year before Martone graduated from NYU. If this ever winds up before a jury, the gray-haired Plevan will look good in the courtroom.

What didn’t look so good, according to Am Law, was Ropes & Gray:

While the two-and-a half-hour-long hearing failed to produce a ruling, it did portray Ropes as a place where individual partners don’t know how much compensation anyone but they themselves receive and where management is quick to cast aside aging partners whose business has floundered. Martone, a patent litigator who is now with Morrison & Foerster, claims in her suit that Ropes management undermined her Asia-focused intellectual property practice for years, routinely passing off her clients and cases to younger male partners and eventually terminating her after she complained about being discriminated against.

It’s noteworthy that this case is before Judge John Koeltl, himself a former Biglaw partner (and graduate of my alma mater, Regis High School). But he worked at Debevoise & Plimpton, a famously lockstep firm — not an “eat what you kill” firm with lots of internal competition.

It sounds like Judge Koeltl asked good questions during the hearing:

During Wednesday’s hearing, Koeltl zeroed in on the series of events at issue, calling the timing of Martone’s firing so soon after [an internal investigation conducted by O’Melveny & Myers] was completed “troubling.” Koeltl did not rule from the bench, saying at the conclusion of the hearing that he would make a decision in a few weeks and urged the two parties to discuss a settlement in the meantime.

Another smart move by Judge Koeltl. Perhaps the uncertainty of his ruling will force the parties to settle (and get the case off his docket).

Here’s the part of the hearing that made me think of “Death of a Salesman”:

Plevan described what she termed a course of “progressive discipline” involving Martone that began with the conclusion of two patent cases in 2007, including one for longtime client Sanyo. “She was never able to replace that work,” Plevan said. “After mid-2007 she never generated any significant business.”

In court filings, Martone tells a different story, describing new work she brought into the firm up until September 2010, the month before she was fired. Martone says she played a key role in helping the firm launch its first international office, in Tokyo, in 2007. The firm sent two male partners in their 40s to work from Japan full time, naming Martone head of U.S. operations for the practice.

The situation between the partners in Japan and Martone quickly deteriorated, however, with the firm criticizing her for being “too controlling” of the Japan practice and asking her to cede responsibility and pass off her clients there to the younger men, according to her complaint. As a result, her business declined from $10 million in 2006 to $1.4 million for the 12 months ending in August 2009, according to an amended complaint filed in July 2011.

A fall from $10 million to $1.4 million is Willy Loman territory. In fairness to Ropes, one can see why the firm placed Martone on a “watch list” of partners with low hours and weak books of business. (Of course, Martone claims that this dramatic drop was the result of unlawful discrimination.)

In addition to the discrimination claims, the case involves a dispute over ERISA-protected retirement benefits. Here’s a reminder of how delicious retired partner compensation can be:

At the time of her firing, Martone was told that if she took early retirement and did not move to a competitor, she could collect retirement benefits — a number Koeltl pegged at $67,500 annually. (Details of the vast majority of Ropes’s arguments, including many firm policies, have been filed under seal.) [Ed. note: Bummer.]

Martone argues that she should have been able to collect a more lucrative retirement package reserved for legacy Fish & Neave partners — benefits Vladeck said were $124,000 annually plus a $517,000 bonus spread over five years.

The latter package — even if not a Wachtell retirement deal, or a Debevoise retirement deal — is pretty sweet. But even the former package, $67,500 a year, is a retirement benefit that 99 percent of American workers would kill for. Combine that with Social Security and additional savings, and you can live quite well for the rest of your life on that income stream.

UPDATE (4/1/2013, 11:55 a.m.): Here’s an interesting thought from the comments:

Looks like a typical acquisition of a midsized firm by a big firm. Half the partners in the midsized firm are fired within a few years of the acquisition. In this case, Ms. Martone had very lucrative legacy retirement benefits from her old firm, Fish & Neave, which she would lose if she could not stay until age 65. There is a lot of money at stake for her. It looks like Ropes & Gray was getting rid of a lot of partners, likely many of the other legacy partners from Fish & Neave who had similar legacy retirement benefits, because they recognized how expensive the promised retirement benefits would be.

We’ll keep you posted about developments in this case. To paraphrase Arthur Miller — the playwright, not the law professor — we’re not saying Patricia Martone is a great woman. She’s not the finest litigatrix who ever lived. But she’s a human being, and a terrible thing allegedly happened to her. So attention must be paid.

UPDATE (2:05 p.m.): Additional discussion of the case, from Carlyn Kolker, appears over at Thomson Reuters News & Insight.

UPDATE (5/23/2013): The case has settled on undisclosed terms. From the firm: “This matter has been settled. Ropes & Gray wishes Pat Martone well.”

No Bias in Firing of Former Partner, Ropes Claims [Am Law Daily via Morning Docket]
Judge has tough words for Ropes & Gray over discrimination suit [Thomson Reuters News & Insight]

Earlier: Ropes & Gray Sued for Age and Sex Discrimination By Former Partner

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