Posted January 8th, 2020.
Jones Day had accused the plaintiffs of using “sophistry” to back up their $200 million proposed class action.
By David Thomas
Lawyers pursuing a $200 million gender discrimination lawsuit against Jones Day have fired back at the firm’s request for sanctions, arguing in a Tuesday brief that it relied on “cherry-picked handful of facts and misleading caricatures” of their claims.
In a 44-page filing in Washington, D.C., federal court, attorneys for Sanford Heisler Sharp said their clients, six former female associates of the Am Law 50 firm, have “at least six independent bases for believing that women at Jones Day are paid less than men.”
The plaintiffs witnessed and experienced discrimination in Jones Day’s performance evaluation process, and they’re prohibited from discussing their pay under the firm’s black box compensation structure, the Sanford Heisler lawyers asserted.
The Rule 11 sanctions motion Jones Day filed in December requires a “patently clear” showing that the claim has “absolutely no chance of success’ —even in view of ‘the freedom to litigate creatively and vigorously,’” the plaintiffs attorneys wrote, arguing that Jones Day had not met that burden.
Jones Day’s associate compensation system is “jealously guarded” by the firm and that information could “conclusively prove or disprove plaintiffs’ allegations regarding systemic disparities in pay,” the brief argues. “Plaintiffs’ pay claims thus present the archetypal situation contemplated by Rule 11 in which a party has good reason to believe an allegation while also requiring discovery to confirm that belief,” the plaintiffs said.
Jones Day claimed last month that the facts that have been revealed so far in the lawsuit filed by plaintiffs Nilab Rahyar Tolton, Andrea Mazingo, Meredith Williams, Jaclyn Stahl, Saira Draper Katrina Henderson undermine and contradict their claims. As a result, all of the plaintiffs’ claims based on disparate pay should be tossed, costs and fees should be awarded to the firm, and potential sanctions should be considered, according to the firm.
The firm pointed to Williams’ deposition, in which she wrote that she and her co-plaintiffs were not compensated at the top-market rates for associates set by Cravath, Swaine & Moore, and suggested that others at the firm were getting Cravath-level pay. But Jones Day said the plaintiffs couldn’t point to anyone else at the firm who was being compensated on that scale.
“Their principal theory of the case—that the proof of discrimination is the fact that Plaintiffs did not earn ‘Cravath scale’—was sophistry on its own terms,” Jones Day argued. “And, to make matters worse, plaintiffs knew facts that contradicted their theory and knew no facts that supported it.”
In a statement, Russell Kornblith, the managing partner of Sanford Heisler and one of the plaintiffs’ attorneys, renewed his call for Jones Day to open up about its compensation practices.
“People should ask what Jones Day is hiding by refusing to release its pay data. The brief sets out good reasons to believe that the data will reveal gender-based disparities in pay. Why won’t Jones Day let us see it?” he said.
Attorneys for Jones Day, which is representing itself in the case, did not respond to requests for comment.