Ogletree Bias Accuser Covered By Arbitration Deal: Judge

Posted January 10th, 2019.

As It Appeared On
Law360

By Braden Campbell

Law360 (January 10, 2019, 6:04 PM EST) — A proposed class action accusing Ogletree Deakins Nash Smoak & Stewart PC of bias against women could be headed to arbitration after a California federal judge said Wednesday the firm’s arbitration agreement covers attorney Dawn Knepper even though she didn’t sign it.

Northern District of California Judge William Orrick granted the firm’s motion to send Knepper’s suit to the Central District of California, where the agreement directs that employment disputes be arbitrated, setting the stage for Ogletree to ask that court to compel Knepper into arbitration.

Knepper had argued that the agreement, which Ogletree told attorneys would apply unless they opted out, didn’t apply to her because she never signed it. But Ogletree told attorneys the deal applies even without a signature, and Knepper explicitly acknowledged the email in which it did so, Judge Orrick noted.

“Ogletree’s records show that Knepper opened email notice 1 and responded to email notice 3,” Judge Orrick said. “That Knepper — an experienced employment law attorney — may not have read or fully comprehended the contents of those emails and their attachments does not preclude a determination that she is bound by the arbitration agreement.”

Knepper’s suit is one of a handful of pending cases alleging that BigLaw firms discriminate against their female attorneys by paying them less than men and limiting their advancement. Knepper, who is now a shareholder at Buchalter PC, claims the firm has a disproportionately male leadership team that favors men over women, including by denying women training and business development opportunities.

Ogletree urged Judge Orrick to send the suit to the Central District per a clause in the agreement designating Orange County, where Knepper worked, as the venue for arbitration. Only the Central District, which serves Orange County, has the power to compel arbitration there, the firm said.

Whether the case belongs in California’s Northern District or its Central District hinges on whether the agreement covers Knepper, Judge Orrick said. And it does, he continued.

That Knepper did not sign or otherwise “manifest express consent to it” does not mean the agreement doesn’t apply to her, Judge Orrick said. He noted that “numerous courts” have enforced contracts like Ogletree’s that “disclose that an employee’s failure to opt out” implies agreement, citing a few examples.

Knepper argued that the cases Judge Orrick cited don’t apply because those employers did more to notify their workers of their arbitration agreements than Ogletree did. Judge Orrick drew a different line between the cases, however.

“While Knepper’s experience as an employment law attorney may not be dispositive, it is significant and weighs in favor of concluding that she is facially covered by the arbitration agreement,” the judge said. “Knepper’s attempt to analogize Ogletree’s actions to situations where defendants attempt to impose arbitration on unsophisticated workers or on consumers is not well-taken.”

Knepper also argued that the agreement is invalid because it is “unconscionable,” claiming among other things that Ogletree tried to trick workers into silence by attaching the agreement to “a deceptively titled” email sent at 4:45 a.m. before a holiday weekend. But Judge Orrick said it’s not his place to evaluate this argument, pointing to language in the agreement empowering an arbitrator to resolve disputes “relating to the interpretation, applicability, enforceability or formation” of the agreement.

Knepper’s attorney, David Sanford of Sanford Heisler Sharp LLP, said he remains “convinced that Ogletree botched its own arbitration agreement and engaged in systemic gender discrimination against its female partners.” He added “there are many current and former Ogletree partners (male and female) who will testify on our behalf.”

Ogletree said Thursday it’s “pleased” with the ruling, noting “the plaintiffs and vast majority of witnesses are located in the Central District of California.” Providing equal employment opportunities is a “core principle” for the firm, it added.

Knepper is represented by Leigh Anne St. Charles, David Sanford, Jill Sanford, Edward Chapin, Danielle Fuschetti and Jeremy Heisler of Sanford Heisler Sharp LLP.

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 Knepper v. Ogletree Deakins Nash Smoak & Stewart PC, case number 3:18-cv-00303, in the U.S. District Court for the Northern District of California.

–Editing by Peter Rozovsky.

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