Former Partner's Suit Against Biglaw Goes To The Supreme Court

Plus another Biglaw firm throws their hat into the ring with an amicus brief.

Constance Ramos

Suing Biglaw firms over gender discrimination has become a veritable trend with firms like Morrison & Foerster, Jones DaySteptoe & Johnson LLP, Chadbourne & Parke (now part of Norton Rose), Proskauer RoseLeClairRyan (RIP), Sedgwick, CKR Law, Ogletree Deakins, and Winston & Strawn all on the receiving end of lawsuits. But, while the lawsuits all make headlines when the complaint is served, often times mandatory arbitration clauses as part of partnership arrest the litigation process and transfer it to confidential arbitration.

One plaintiff who’s had success in challenging her former firm’s arbitration gambit is Constance Ramos, who sued Winston & Strawn alleging the firm treated her as “an appendage of a male superior” and that the firm tried to get rid of her once the male equity partner she worked with departed the firm. In November, a three-judge panel of the California Court of Appeal found that the arbitration clause was unconscionable and therefore unenforceable. Winston & Strawn is seeking to have that decision overturned.

As reported by Law.com, Winston & Strawn’s lawyer, Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, is arguing the Federal Arbitration Act should control and that the lower courts need a “reminder” about how preemption should work:

“In the wake of [AT&T Mobility v. Concepcion], no other jurisdiction has held that arbitration-specific rules like these survive FAA preemption,” Rosenkranz told the justices in May. He argued that “California courts need another reminder” to follow the Supreme Court’s precedence on enforcement of arbitration agreements. “It is time,” Rosenkranz wrote.

But Ramos’s attorney, Karla Gilbride of Public Justice, argued that it was the unusual terms of Winston’s arbitration agreement that forced the lower court’s decision:

The law firm’s “overly harsh” terms in its partnership agreement drove the lower court opinion, Gilbride told the justices Wednesday. Chief among those terms that the lower court found unconscionable, Gilbride said, was the “firm always wins” clause. That provision, with one exception, barred the arbitration panel from substituting its judgment for the decisions of the partnership, its executive committee or officers.

That clause, Gilbride said, “would make it impossible for the arbitrators to award Ramos back pay, front pay, reinstatement or punitive damages—essentially every form of relief she sought in her complaint for employment discrimination and retaliation.”

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But Winston & Strawn isn’t the only Biglaw firm hoping the Supreme Court will take a stand on the side of arbitration. Ropes & Gray has filed an amicus brief in the case:

Ropes & Gray filed an amicus brief supporting Winston & Strawn. “Today, it is common for law firms to experience regular fluctuations in their partnership ranks,” Douglas Hallward-Driemeier, head of the firm’s appellate and Supreme Court practice, said in the brief. “As a result, it has become increasingly important for law firms to be able to quickly and efficiently resolve internal disputes in a way that protects confidential information and minimizes disruptions to client service.”

Whatever the outcome, it’s clear it will have a big impact on Biglaw.


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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