Ogletree Says Atty Ignored Chance To Opt Out Of Arbitration

Posted October 10th, 2018.

As It Appeared On
Law360

By Emma Cueto

Law360 (October 10, 2018, 5:36 PM EDT) — Ogletree Deakins Nash Smoak & Stewart PC on Tuesday pushed back against a former shareholder’s argument in her gender bias suit that an arbitration agreement she claims she never consented to should be set aside, saying she was given the chance to opt out but did not do so before the deadline.

The firm said that contrary to Dawn Knepper’s claim that the agreement was presented in a misleading way when first emailed to employees, she had acknowledged receipt of a second email with “arbitration agreement” in the subject line and which clearly stated that employees would be bound by the agreement if they did not opt out by a specified deadline.

“There was not mere silence or inaction; Knepper demonstrated her intent to be bound by remaining employed after, and not opting out by, the … deadline,” the reply said. “We need not infer Knepper’s assent from her silence, but from her decision to continue to work subject to the new term or condition.”

The reply also argued that Knepper’s filing earlier this month arguing against the arbitration agreement was itself misleading and that it falsely claimed she had no knowledge of the agreement when she put together her current suit, even though the second employee email was sent before she first met with her attorneys.

“The sequence of events proves that Knepper’s statement in her declaration is false, and because she was false on one issue, she should be disbelieved completely,” the reply said.

Leigh Anne St. Charles, an attorney for Knepper, told Law360 that “Ogletree had a duty to take affirmative action to ensure employees had adequate notice that they were waiving their statutory rights by simply showing up to work. Silence in the face of administrative emails is insufficient to create a binding contract.”

Counsel for Ogletree did not respond Wednesday to a request for comment.

Knepper, an employment attorney who spent 12 years at Ogletree, sued in January. She left the firm for Buchalter PC a month later.

Her suit alleges that Ogletree has fostered a male-dominated culture in which male shareholders are “grossly over-represented” at the top tier of its management structure, and that they systematically discriminate against female non-equity shareholders in pay and promotions.

The firm then attempted to move the pay discrimination dispute from the Northern District of California to the Central District, but that effort was stalled after Knepper requested to add three individual defendants, four named plaintiffs, and new breach of contract and breach of fiduciary duty claims in an amended complaint.

After the new complaint, the parties conducted limited discovery on the issue of the arbitration agreement and then resumed their dispute over whether the suit belongs in federal court or not.

Ogletree argued that Knepper had multiple opportunities to opt out of the agreement but never did, while Knepper stressed in a filing on Oct. 2 that she had never signed it and argued that her right to a trial could not be waived through silence.

Knepper is represented by Leigh Anne St. Charles, David Sanford, Jill Sanford, Edward Chapin 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.

–Additional reporting by Sam Reisman, Cara Bayles, Dorothy Atkins, Ryan Boysen and Vin Gurrieri. Editing by Adam LoBelia.

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