Posted May 10th, 2019.
By Kevin Stawicki
Law360 (May 10, 2019, 5:28 PM EDT) — Two former Ogletree shareholders who joined a class action last year accusing the firm of underpaying women are angling to take the case’s helm after the original named plaintiff’s claims were kicked to arbitration.
Jocelyn Campanaro and Angelica Ochoa asked a California federal judge Thursday to intervene in the suit and transfer the case to Colorado, where both women had worked for Ogletree Deakins Nash Smoak & Stewart PC. In 2018, Campanaro and Ochoa opted into the collective action, which alleges Ogletree violated the Equal Pay Act by maintaining a discriminatory compensation system that favored male shareholders.
Because their claims haven’t changed and no new discovery would be required, Campanaro and Ochoa said being named plaintiff and class representative would allow them to pick up where named plaintiff Dawn Knepper left off.
“There is no dispute that Ms. Knepper is no longer in a position to represent the opt-ins and proposed class. Someone else must step into her shoes,” Thursday’s brief said. “Unless relief is granted, this would result in prejudice to the existing opt-ins and the class and undermine the basic benefits of a class and collective action.”
Judge James Selna had granted Ogletree’s motion to compel Knepper to arbitrate her claims, ruling on March 25 that a 2016 arbitration agreement applied to Knepper even though she didn’t sign it. The judge also denied Knepper’s motion to amend the lawsuit to add Campanaro and Ochoa, saying they didn’t need to be parties for the court to resolve the California’s Private Attorneys General Act claim, which deputizes workers to challenge labor code violations for the state.
While the judge stayed the PAGA claim pending Knepper’s arbitration, Thursday’s brief said severing and keeping it in California federal court would let Campanaro and Ochoa, who are both now with Fisher Phillips, pursue their claims in Colorado as named plaintiffs seeking their own relief.
The women, who said they are not subject to arbitration agreements with Ogletree, argued Thursday that as opt-ins, they are entitled to intervention under Rule 24, that courts routinely allow class and collective action plaintiffs to be added at any stage of litigation, and that forcing opt-in plaintiffs to refile their claims only wastes everyone’s time.
Knepper filed suit in 2018, accusing Ogletree’s largely male leadership group of favoring men in pay, promotions and business development opportunities. She sought to keep her proposed class action in court, arguing Ogletree’s policy of arbitrating employment-related claims didn’t apply to her because she didn’t sign it.
Ogletree distributed the policy in a 2016 email and asked workers to return it signed, with a disclaimer saying that silence would be taken as acceptance. Knepper acknowledged the form but did not return it, according to email records Ogletree cited.
In response to Law360’s request for comment on Thursday’s motion, Ogletree said in a statement Friday that a recent compensation analysis at the firm found that gender had no impact on pay for both equity and nonequity shareholders nationwide.
“Equal opportunity has been a core principle of Ogletree Deakins since the firm’s founding, and we do not tolerate discrimination of any kind — gender or otherwise,” Ogletree said. “Under our ‘open compensation’ system, all shareholders in the firm know what every other shareholder earns — and the factors that support those determinations.”
Andrew Melzer of Sanford Heisler Sharp LLP, who represents Knepper, said in an email that Thursday’s motion lets the case proceed in the fastest way possible.
“It’s perfectly proper for opt-in plaintiffs to intervene to vindicate an EPA claim when an original plaintiff has been compelled to arbitrate her own EPA claims,” Melzer said, referring to the Equal Pay Act. “The motion to intervene will enable the case to go forward as an EPA collective action with as little delay as possible.”
Transferring the case to Colorado would also let the new plaintiffs avoid disputes about proper venue to more quickly reach the merits of the case, Melzer added.
Knepper, Campanaro and Ochoa are represented by David Sanford, Ed Chapin, Jill Sanford, Danielle Fuschetti Sr., Andrew Melzer and Leigh Anne St. Charles of Sanford Heisler Sharp LLP and Aashish Y. Desai of the Desai Law Firm PC.
Ogletree is represented by Nancy L. Abell, Deborah S. Weiser, Valerie M. Marek and Paul W. Cane Jr. of Paul Hastings LLP.
The case is Dawn Knepper v. Ogletree Deakins Nash Smoak & Stewart PC, case number 8:19-cv-00060, in the U.S. District Court for the Central District of California.
–Additional reporting by Braden Campbell and Vin Gurrieri. Editing by Jill Coffey.
Update: This article has been updated to include comment from the plaintiff’s counsel.