Posted January 8th, 2020.
By Andrew Strickler
Law360 (January 8, 2020, 2:20 PM EST) — A group of lawyers suing Jones Day for gender bias shot back at the firm’s sanctions bid Tuesday, rejecting the position that they didn’t investigate their claims before filing suit and arguing they have six reasons to believe the BigLaw powerhouse underpays women associates.
Responding to Jones Day’s recent call for Rule 11 sanctions, the plaintiffs argued the firm was cherry-picking facts from their complaint and using “misleading caricatures” of their case as unsupported by facts. At the same time, Jones Day is fighting to keep its salary and performance review data out of their hands.
“This information regarding associate compensation, which could conclusively prove or disprove plaintiffs’ allegations regarding systemic disparities in pay, is jealously guarded within the custody and control” of Jones Day, according to the motion.
“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 say that Jones Day fosters a sexist “bro” culture and uses a secretive compensation system that undercuts female lawyers in pay and professional development. The lawyers, who have asked the court to let them move forward as a conditionally certified collective action, also claim that the firm pushes women out when they have children.
Jones Day has vigorously denied the assertions and argued that it should not have to hand over in discovery a sweeping set of compensation data and performance reviews from all Jones Day offices in the U.S. At a December hearing, U.S. District Judge Randolph Moss voiced some skepticism that the plaintiffs couldn’t get at least some of their desired information from other sources, but said he would wait on deciding the discovery questions until after the pleading stage.
In their Tuesday filing, the women said they had six independent reasons for believing that women at Jones Day are paid less than men and had met the “modest” Rule 11 requirements for evidentiary support for claims. They included their own experiences with “widespread hostility, harassment, and gender bias” and their inference that biased performance evaluations led to pay disparities.
The plaintiffs are also aware that Jones Day’s “pay secrecy policy openly works to undermine the laws of at least two states, which guarantee employees the right to discuss their compensation openly,” according to the motion.
“People should ask what Jones Day is hiding by refusing to release its pay data,” said plaintiffs counsel Russell Kornblith. “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?”
Counsel for Jones Day did not immediately respond to a request for comment.
The plaintiffs are represented by Deborah K. Marcuse, Kate Mueting, Paul Blankenstein, David W. Sanford and Russell L. Kornblith of Sanford Heisler Sharp LLP.
Jones Day is represented in-house by Terri L. Chase, Mary Ellen Powers, Yaakov Roth and Beth Heifetz.
The case is Tolton et al. v. Jones Day, case number 1:19-cv-00945, in the U.S. District Court for the District of Columbia.
–Additional reporting by Braden Campbell and Emma Cueto. Editing by Alyssa Miller.