War of Words Follows Class Action Retreat in MoFo ‘Mommy Track’ Suit

Posted February 19th, 2020.

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Morrison & Foerster said a decision by two former lawyers to drop their class action claims “validates” the firm defense. But attorneys at Sanford Heisler Sharp say they still allege systemic discrimination against pregnant women and new mothers.

By David Thomas

Morrison & Foerster is seizing on the withdrawal of $100 million in proposed class action claims by two ex-lawyers who alleged the firm discriminates against pregnant women and new mothers, casting the move as a kind of vindication.

But the case isn’t over, and the Sanford Heisler Sharp attorneys representing plaintiffs Sherry William and Joshua Ashley Klayman outright rejected MoFo chairman Larren Nashelsky’s assertion that stripping class claims from the case “validates what we’ve said here since the beginning.”

“Dropping all of the class action and collective action claims, it’s a clear indication that there’s no supporting fact pattern of any of the systemic issues of gender discrimination that they’ve alleged,” Nashelsky told ALM.

Andrew Melzer, a New York partner at Sanford Heisler, countered in a statement that the plaintiffs’ position on the facts haven’t changed, and “our clients are currently focusing on pursuing their individual claims based on strategic considerations.”

“Plaintiffs continue to pursue allegations that MoFo engages in systematic gender and pregnancy discrimination and seek to address MoFo’s broader practices,” Melzer said.

Nashelsky and Melzer’s comments come days after a fresh round of filings in the Northern District of California litigation. On Friday, William and Klayman sought to file their fourth amended complaint in the legal battle that started in April 2018, this time eschewing class and collective claims. MoFo filed its answer to the new complaint on Sunday.

As of Tuesday afternoon, U.S. Magistrate Judge Jacqueline Scott Corley had not formally accepted the plaintiffs’ request for leave to file their fourth amended complaint.

William and Klayman’s filing reiterates their allegations that Morrison & Foerster systematically discriminates against mothers and pregnant women, including by holding back advancement opportunities from female associates who have taken maternity leave.

“They now face a Hobson’s choice: pay a motherhood penalty in the form of slower rates of progression and correspondingly lesser compensation, thus accepting lower pay for substantially equal work requiring equal skill, effort, and responsibility to that of their male colleagues; or, in the alternative, follow MoFo’s mommy track out the door in hopes of rescuing their careers,” William and Klayman said in their lawsuit.

William also alleged that Morrison & Foerster fired her in retaliation less than a week after she revealed herself as one of the plaintiffs. The firm in its answer said she was fired because of “sustained performance failures and low productivity” during an annual review. But William also alleged the annual review was “hastily scheduled” and she had no prior complaints about her productivity.

The plaintiffs are seeking an unspecified amount of damages.

Nashelsky and Morrison & Foerster, meanwhile, reiterated their stance that the plaintiffs’ claims have no merit. The firm in its reply said the evidence shows William and Klayman were not discriminated against, but that they “failed to meet the firm’s performance expectations.” It pointed to another female lawyer who worked in the same finance and projects group in Los Angeles as William and made partner while she was on her second maternity leave.

“Sub-par performance, not discrimination, is the reason Ms. William ultimately was terminated by Morrison,” the firm said. Klayman, meanwhile, rejected multiple mentorship opportunities her former colleagues offered her, Morrison & Foerster claimed.

William and Klayman were, at one point, joined by five other women who also claimed to be victims of Morrison & Foerster’s “mommy track.” But those women settled their claims with the law firm, according to a Nov. 27 filing from Morrison & Foerster’s lawyers at Gibson, Dunn & Crutcher and the plaintiffs’ lawyers at Sanford Heisler.

Nashelsky declined to comment on the firm’s settlements with those five other plaintiffs. However, he did say the firm was willing to settle the case with William and Klayman if “it made sense for the firm.”

William and Klayman publicly revealed their identities two months ago. William was a senior associate in Morrison & Foerster’s Los Angeles office while Klayman is the head of Linklaters’ fintech and blockchain and digital assets.

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