Ogletree Says Evidence Hearing Not Needed In Sex Bias Suit

Posted March 12th, 2019.

As It Appeared On
Law360

By Braden Campbell

Law360 (March 12, 2019, 7:07 PM EDT) — Ogletree Deakins Nash Smoak & Stewart PC asked a California federal judge not to hold a hearing on its evidence for making a former shareholder arbitrate her sex bias claims against the firm, saying there is no disputing that she is bound by an arbitration agreement.

Ogletree on Monday accused Dawn Knepper of changing her tune, in its reply to her February memo asking the Central District of California to hold an evidentiary hearing on whether the agreement — which the firm says Knepper acknowledged but did not sign — means her claims belong in arbitration.

Knepper never asked for an evidentiary hearing when she pushed back against the pact in the Northern District of California, which granted Ogletree’s motion to transfer the case in January, and she now “fails to explain what relevant factual issue requires live testimony,” the firm said.

“Here, there is no factual dispute at all, let alone anything ‘sharply conflicting,'” Ogletree said, citing language from a relevant California Supreme Court ruling. “The text of the agreement is what it is, and it is undisputed.”

Knepper, who alleges that the firm’s largely male leadership group favors men in pay, promotions and business development opportunities, said Ogletree’s policy directing employment claims to arbitration doesn’t apply to her. Ogletree distributed the policy in a 2016 email and asked workers to return it signed, with a disclaimer saying silence would be taken as acceptance. Knepper said she would return the form but never did, Ogletree says.

Ogletree cited that policy in a motion in January asking the court to send Knepper’s claims to arbitration. Knepper said in a response last month that the contract doesn’t apply to her because she never signed it, and she asked the court to conduct an evidentiary hearing to resolve the parties’ disagreement. But no testimony could prove Knepper right, Ogletree said Monday.

Knepper claims she didn’t intend to give up her right to sue, but her intent is irrelevant, Ogletree said. Instead, the issue for the court is “what she did: continue to work without opting out,” the firm said, citing a handful of California federal and Ninth Circuit rulings in which courts enforced arbitration agreements that plaintiffs’ didn’t opt out of.

Several rulings Knepper cited to back up her bid for a hearing are “inapposite,” Ogletree said. Some of those cases required deeper analysis because they involved fraud, some involved competing contracts and others raised questions about whether the party being pushed to arbitrate knew about the alleged agreement to arbitrate, it said. But none of those circumstances exist for Knepper, the firm said.

Ogletree also asked the court to grant its related motion to stay Knepper’s claims under California’s Private Attorneys General Act should her other claims be sent to arbitration.

PAGA deputizes workers to bring employment claims for the state. Because those claims are the state’s and not the worker’s, they are not covered by the worker’s arbitration agreement, California courts have said. However, courts have paused workers’ PAGA claims when sending related claims to arbitration, Ogletree said.

And the firm pushed the court not to let Knepper amend her complaint to add four more plaintiffs, saying one is covered by the same arbitration agreement and the other three, who aren’t California residents, should file in their home states.

Sanford Heisler Sharp LLP, which represents Knepper, said Ogletree’s brief glosses over the fact that “the issue of [her] consent to arbitrate her claims against Ogletree is a factual one.”

“Ogletree emphasized that its arbitration agreement needed to be signed, and Dawn Knepper never signed the agreement,” the firm said. “We are asking the court to allow Ms. Knepper an opportunity to be heard, as is contemplated by the Federal Arbitration Act.”

A representative for Ogletree declined 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 Stephen Berg.

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