Ex-Ogletree Atty Says Arbitration Pact ‘Rife With Defects’

Posted February 26th, 2019.

As It Appeared On
Law360

By Braden Campbell

Law360 (February 26, 2019, 3:43 PM EST) — A former Ogletree Deakins Nash Smoak & Stewart PC attorney pursuing a proposed class action accusing the firm of underpaying its female lawyers urged a California federal judge to keep her case in court, faulting Ogletree’s “barebones approach” to her arbitration agreement.

Ex-Ogletree shareholder Dawn Knepper pushed back Monday against Ogletree’s argument that she effectively agreed to arbitrate claims against the firm by failing to opt out of its mandatory arbitration agreement, saying her silence shouldn’t be taken as assent.

“Ogletree’s putative arbitration agreement is rife with defects in formation that preclude its enforcement. In short, arbitration is a matter of consent, and plaintiff Knepper never agreed to arbitrate her claims,” she said, urging the court to hold an evidentiary hearing before deciding if arbitration is the right way to go.

Ogletree last month urged the Central District of California to send Knepper’s individual claims to arbitration, citing language in its arbitration agreements with workers saying they agree to be bound unless they opt out. The Northern District of California, where Knepper filed suit last year, had earlier said the contract “facially applied” to her in an order sending her suit to the Central District.

Knepper argued Monday that the court should hold a hearing on Ogletree’s motion to compel arbitration because it is in dispute whether the cited agreement covers her claims. That Ogletree asked workers to sign the agreement suggests the firm “contemplated that [the agreement] would be executed by the employee,” calling into question its claim the pact applies even unsigned, she claims.

“Notably, as a leading management-side law firm, Ogletree promotes itself as an expert in crafting employer arbitration agreements,” Knepper’s filing said. “Ogletree was thus surely aware of ‘several simple steps readily available to [it] that likely would have ensured the adequacy of the notice’ of the MAA and resulted in unequivocal agreements. Yet, it adopted a ‘barebones approach,'” putting forth only minimal effort to get buy-in.

Knepper further argued “none of the conditions under which a valid agreement may be inferred is present,” noting she did not “expressly assent” to the agreement or sign anything related to the agreement, that she had no legal duty to respond to firm communications she called ambiguous and contradictory, and that Ogletree didn’t give her anything in exchange for her purported agreement.

“Ultimately, Knepper ‘did not give any outward manifestations of consent [that] would lead a reasonable person to believe the offeree has assented to the agreement,’” she argued. And any ambiguity as to whether she agreed to arbitrate claims should be construed against Ogletree, Knepper said.

That the Northern District of California said the arbitration agreement seems to cover Knepper’s claims is irrelevant, Knepper said, noting Judge William Orrick’s ruling is not binding on the Central District and that he never probed Ogletree’s arguments at a hearing.

“Such an evidentiary presentation will enable the court to make a fully informed decision before relegating plaintiff’s claims to arbitration,” Knepper said, urging the court to weigh the evidence during a March 25 hearing on Ogletree’s motion to compel arbitration. “It would be inappropriate to make a conclusive, final finding that plaintiff intended to enter the MAA — and thus waive her legal rights — based on the papers alone.”

Ogletree has also asked the court to stay a claim Knepper brought under California’s Private Attorneys General Act, which lets California workers sue for the state, as well as claims by opt-in plaintiffs alleging the firm stiffed them under the Federal Equal Pay Act. Knepper argued Monday that pausing these claims would be unfair to the state and the opt-in plaintiffs, who clearly did not agree to arbitrate. Such a freeze also upends the process the U.S. Supreme Court established in Teamsters v. U.S. , which directs courts to decide class liability issues before deciding individuals’ rights to relief, Knepper said.

“By demanding a stay of the parties’ representative and collective claims in favor of arbitration of Knepper’s individual claims, Ogletree has it exactly backwards,” she argued.

Sanford Heisler Sharp LLP attorney Leigh Anne St. Charles, who represents Knepper and the opt-ins, told Law360 she wants a hearing because the documents presented in the case are inconclusive as to whether Knepper agreed to arbitrate.

“It’s still a genuine question of fact that’s yet to be determined and requires testimony,” she said. She also said it “makes sense in the interest of judicial efficiency” to let Knepper’s PAGA claims and the opt-ins’ EPA claims go forward.

Ogletree did not immediately respond to a request for comment Tuesday.

Knepper is represented by David Sanford, Ed Chapin, Jill Sanford, Danielle Fuschetti Sr. 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 Adam Lidgett. Editing by Aaron Pelc.

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