Biglaw

One Biglaw Firm Refuses To Do Away With Forced Arbitration Agreements

Of course there's a hashtag -- #DumpDLA

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Mandatory arbitration clauses as part of employment agreements have been getting a lot of attention in the legal world lately. It’s not surprising given how these agreements have been wielded as a sword — particularly in sexual harassment cases — to prevent allegations from receiving too much attention. But that may have backfired.

Over the summer, the Biglaw practice of requiring their employees to arbitrate employment disputes rather than allow people to have their day in court came to light after Ian Samuel revealed Munger Tolles’s agreement on Twitter. The firm experienced immediate backlash and quickly reversed course.

In order to get more information on precisely which firms were requiring arbitration as a term of employment, T14 law schools sent a survey asking those firms that recruit on campus to disclose their practices. While this was a great first step, a bunch of firms simply refused to participate in the survey.

Enter the Pipeline Parity Project.

The Pipeline Parity Project is a group of Harvard Law student organizing around a number of Biglaw issues. Notably they’ve begun to tackle mandatory arbitration agreements. First they targeted Kirkland, which had declined to participate in the survey, but as student organizers discovered, did indeed have mandatory arbitration agreements. After the public pressure caused by the protest — complete with the hashtag #DumpKirkland — the firm caved, and eliminated their arbitration agreements (at least for associates). 

However, the Pipeline Parity Project’s work is far from done. There are still a lot of firms out there — and interviewing on campuses — that require employees to sign arbitration agreements. With their efforts expanding, one firm, Sidley Austin, announced they were doing away with their arbitration agreements — before they became a hashtag.

But not every firm is concerned about the PR hit they’re taking by keeping these agreements in place. Megafirm DLA Piper has now been targeted by the activists for their arbitration agreements. (Of course there’s a hashtag #DumpDLA.) But, as reported by Law.com, rather than change their policy, the firm has dug in on their use of mandatory arbitration agreements:

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“There are advantages and disadvantages to every type of dispute resolution process,” the statement [by DLA Piper] reads. “It has been our experience as a firm that arbitration is a fair and efficient way to resolve internal disputes, and one that benefits all parties in what are often sensitive matters for everyone involved.”

Here’s the problem with this statement: it defends arbitration as an option, not as a requirement. Conflating the benefits some people get from arbitration does not at all speak to the harm of forcing all their employees to use that as their exclusive mechanism for dispute resolution. DLA’s statement might be gussying up the reality in pretty language, but make no mistake they’ve decided to keep their mandatory arbitration agreements because it benefits the firm.

As Harvard Law student and activist Molly Coleman notes:

“Personally, I would be offended by an employer who was so paternalistic as to believe that they knew what route to a remedy was best for me, especially if that employer subjected me to illegal harassment or discrimination, but that’s just me,” said Molly Coleman, a student at Harvard Law School and organizer with the Pipeline Parity Project.

Maybe DLA just doesn’t care if they aren’t able to recruit students from Harvard Law. Maybe they don’t mind dealing with yet another controversy in the #MeToo era. Maybe they think the costs of letting employees go to court are just too high. Regardless of the reason, the students at the Pipeline Parity Project appear ready to hold their feet to the fire.

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headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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